Kennedy v Director-General, NSW Department of Industrial Relations - [2002] NSWADT 186

CITATION: Kennedy v Director-General, NSW Department of Industrial Relations [2002] NSWADT 186

DIVISION: Equal Opportunity Division

PARTIES: APPLICANT
Patrick Kennedy
RESPONDENT
Director-General, NSW Department of Industrial Relations

FILE NUMBER: 102 of 1998

HEARING DATES: 31/08/00, 2-4/04/01, 24-25/10/01, 19/02/02

SUBMISSIONS CLOSED: 02/19/2002

DATE OF DECISION:
09/27/2002

BEFORE: Britton A - Judicial Member; Alt M - Member; Farmer L - Member

APPLICATION: Age Discrimination - In work - Victimisation

MATTER FOR DECISION: Prncipal matter

LEGISLATION CITED: Administrative Decisions Tribunal Act 1997
Anti-Discrimination Act 1977
Industrial Relations Act 1996
Public Sector Management (General) Regulation 1996
Public Sector Management Act 1994
Public Sector Management Act 1988

CASES CITED: Commonwealth v Verwgyen (1990) 170 CLR 394
Anshun (1981) 147 CLR 589
Commissioner of Corrective Services v Aldridge [2000] NSWADTAP 5
Alone v State Housing Commission ("Homewest") (1992) EOC 92-392
Fenwick v Beveridge Building Products Pty Ltd (1986) EOC 92-147
Khanna v Ministry of Defence (1981) ICR
Department of Health v Arumugam (1987) EOC 92-195; (1988) VR 319
Hafez v Warilla Women's Refuge Ltd, Clegg and McEwan [3 of 1993 & 40 of 1995]] NSWEOT
Shaikh v Commissioner, NSW Fire Brigades (1996) EOC 92-808
Lal v President, Anti-Discrimination Board of New South Wales [2000] NSWADT 68
Crewdson v President, Anti Discrimination Board of New South Wales [2000] NSWADT 60
Sivananthan v Commissioner of Police, New South Wales Police Service [2001] NSWADT 44
O'Callaghan v Loder [1984] EOC 92-023
Reddrop v Boeringer Ingleheim Pty Ltd [1984] EOC 92-031
Waterhouse v Bell (1991) 25 NSWLR 99
Shellharbour Golf Course v Wheeler [1999] NSWSC 224
Hall v Sheiban (1985) ALR 503

REPRESENTATION: APPLICANT
P Veitch, barrister
RESPONDENT
T Anderson, barrister

ORDERS: The complaint of age discrimination is dismissed.; The respondent to pay the complainant within 21 days of the date of this decision the sum of $5,000 in relation to the complaint of victimisation.; The complainant to pay the respondent costs of $300 within 21 days of the date of the date of this decision.

1 This decision concerns complaints of unlawful discrimination on the grounds of age in the area of employment and victimisation. The complainant, Patrick Kennedy, alleges that his employer, the NSW Department of Industrial Relations (the Department) unlawfully discriminated against him on the grounds of age. Mr Kennedy further alleges that the Department subjected him to victimisation contrary to the provisions of s 50 of the Anti-Discrimination Act 1977 (the Act). These allegations are denied.

Referral by the President

2 In February 1995 Mr Kennedy lodged a complaint with the President of the Anti-Discrimination Board (“the President” and “the Board”) alleging age discrimination. He later withdrew that complaint.

3 On 2 October 1996 Mr Kennedy lodged a fresh complaint, again alleging unlawful age discrimination and, in addition, victimisation.

4 On 15 October 1997 Mr Kennedy wrote to the Board making further allegations of unlawful age discrimination and victimisation by the Department when it dismissed him in February 1997.

5 On 28 April 1998, at the request of Mr Kennedy, the President referred his 1996 and 1997 complaints to the (then) Equal Opportunity Tribunal under s 94(1) of the Act. As required by s 94(1), the President also referred his report relating to inquiries about the complaint (the President’s Report).

Background

6 In August 1994 Mr Kennedy as an Award Enquiry Officer (Grade 1/2) with the Award Enquiry Section Centre (AESC). He was then in his early forties. The AESC was a call centre within the Department of Industrial Relations. The core work of the centre was fielding phone enquiries about industrial relations matters. About twenty other employees, most in their twenties, were recruited at the same time as Mr Kennedy.

7 Award enquiry officers worked in small teams coordinated by a team leader. For some of the period Mr Kennedy worked at the AESC he belonged to the team led by Nicole Vlahos. At other times Ms Vlahos’s mother, Eugenia Vlahos was the leader of Mr Kennedy’s team. Patricia Riley was at all relevant times the manager of the section.

8 Mr Kennedy was engaged as a temporary officer under s 38 of the Public Sector Management Act 1994 initially on a four months contract. When that contract expired, he was given successive separate contracts that were materially identical to the first contract. In effect, Mr Kennedy’s contract was renewed 14 times. At all times he was employed on a full time basis except for a short period in early 1995.

9 In late 1994 a shortage of funds meant staffing cuts became necessary within the AESC. A proposal was adopted after consultation with staff that involved some staff including Mr Kennedy having their hours reduced for a period of about six weeks. Mr Kennedy (and others) opposed the plan.

10 In a paper dated 23 January 1995, Mr Kennedy and colleagues Kenneth Linnegar and Margaret Penhall-Jones wrote to the Director-General of the Department setting out a number of grievances concerning employment practices in the AESC and complaining about Mr Riley’s decision to reduce hours. The submission states “All older staff amongst the August-intake group temporary staff i.e. those between 39 and 43 years have had their hours cut or are finishing early and appear to be on the bottom of the eligibility list”. They contended that various practices within the AESC constituted age based discrimination. They also pointed to what they regarded as management shortcomings. In February 1995 Mr Kennedy lodged a complaint with the Board but later withdrew it. On 23 February 1995 Mr Kennedy lodged a grievance with the Department alleging, among other things, age discrimination by team leader Nicole Vlahos. Mr Kennedy applied for positions as Award Enquiry Clerk (or placement on an eligibility list) in May 1996, August 1996 and February 1997. On each occasion he was interviewed by a different panel and not recommended for appointment. On 15 July 1996 Mr Kennedy lodged another internal grievance, about Mrs Riley as well as Ms Vlahos, alleging age discrimination and failure to implement the Department’s equal opportunity policies. Mr Kennedy’s contract was terminated on 26 February 1997.

Relevant legislative provisions

11 Mr Kennedy’s case is based on both the direct and indirect discrimination provisions of the Act.

12 Part 4 of the Act deals with age discrimination. Section 49 ZYA provides:

(b) requires the aggrieved person to comply with a requirement or condition with which a substantially higher proportion of persons who are not of that age or age group, or who do not have such a relative or associate who is that age or age group, comply or are able to comply, being a requirement which is not reasonable having regard to the circumstances of the case and with which the aggrieved person does not or is not able to comply.

13 The substantive provision on which Mr Kennedy relies is s. 49ZYB. It provides:

(1) It is unlawful for an employer to discriminate against a person on the ground of age:

(b) in determining who should be offered employment, or

(c) in the terms on which employment is offered.

(b) by denying or limiting access to opportunities for promotion, transfer or training, or to any other benefits associated with employment, or

(c) by dismissing the employee or subjecting the employee to any other detriment.

14 Section 4A of the Act provides that where an act is done for two or more reasons and one of those reasons constitutes unlawful discrimination, whether or not it is the dominant or substantial reason for doing that act, then the act is taken to be done for that reason.

15 Section 50 of the Act provides:

(1) It is unlawful for a person ("the discriminator") to subject another person ("the person victimised") to any detriment in any circumstances on the ground that the person victimised has:

(b) given evidence or information in connection with proceedings brought by any person against the discriminator or any other person under this Act,

(c) alleged that the discriminator or any other person has committed an act which, whether or not the allegation so states, would amount to a contravention of this Act, or

(d) otherwise done anything under or by reference to this Act in relation to the discriminator or any other person, or by reason that the discriminator knows that the person victimised intends to do any of those things, or suspects that the person victimised has done, or intends to do, any of them.

16 Among his Points of Claim Mr Kennedy alleges that he was “discriminated against, victimised and sacked on 26 February 1997. In paragraph 5(h), he expanded this allegation to assert that the victimisation he claimed he had suffered “culminated in the Respondent sacking the Complainant without notice in a harsh and insulting manner.”

17 The respondent contends that the complainant is estopped from pursuing these points of claim. It argues that the complainant took action in the Industrial Relations Commission of NSW (“the Commission”) concerning his claim that he had been unfairly dismissed. Therefore, he is now estopped from proceeding in the Tribunal in relation to the termination of his employment by the respondent. The respondent asserts that:

Commonwealth v Verwqyen (1990) 170

394.

18 This argument is based on a number of facts. First, that Mr Kennedy took action concerning his claim that he had been unfairly dismissed. Second, that the matter resulted in a conciliated settlement between the parties and a consequent dismissal of the proceedings on the basis of that agreement. An undated letter from the Director-General’s delegate confirmed that a payment of $1723.78 had been made to Mr Kennedy representing a “full and final settlement of his claim against the Department”. Third, it is said that Mr Kennedy did not honour his side of the agreement. The respondent says that it is implicit in the agreement reached between the parties that no further action would be taken by Mr Kennedy in respect of the allegedly unfair termination of his employment. Fourth, it is submitted by the respondent that Mr Kennedy accepted the moneys tendered by the respondent as part of the agreement and that nothing was done by Mr Kennedy between the time the agreement was reached and the formal dismissal of the complaint by Commissioner Cambridge to indicate to the Commission or the respondent that he was unhappy with the deal or did not accept it as conclusive of the dispute.

19 It is also argued by the respondent that there the Parliament’s clear legislative intent is that proceedings are not to be duplicated. Section 95A of the Act provides that:

(2) This section does not affect the operation of section 73 (Procedure of the Tribunal generally) of the Administrative Decisions Tribunal Act 1997 in relation to evidence given before, or findings made by, the Industrial Relations Commission.

20 Section 179(1) of the Industrial Relations Act 1996 provides:

(1) Subject to the exercise of a right of appeal to a Full Bench of the Commission conferred by this or any other Act or law, a decision or purported decision of the Commission (however constituted): (a) is final, and (b) may not be appealed against, reviewed, quashed or called in question by any court or tribunal (whether on an issue of fact, law, jurisdiction or otherwise).

21 Section 84 of the Industrial Relations Act provides a remedy for employees who consider the termination of their employment by their employers to have been “harsh, unreasonable or unjust”.

22 These two sections, says the respondent, also show that the legislature’s intention that proceedings in the Commission are to be regarded as final.

23 The respondent contends also that it would be wrong to allow the complainant to ‘relitigate’ a matter already dealt with and disposed of justly in the Commission. It refers us to s 73 of the Administrative Decisions Tribunal Act 1997 (ADT Act) requiring the Tribunal “to act with as little formality as the circumstances of the case permit and according to equity, good conscience and the substantial merits of the case without regard to technicalities or legal forms.”

24 Relying on the doctrine of promissory estoppel, the respondent argues that it would be effectively inequitable for Mr Kennedy to be allowed to pursue this aspect of his points of claim in the Tribunal because he had promised not to do so and the respondent relied upon that promise to its detriment by paying him an agreed sum. Indeed, the respondent goes further, arguing that his conduct in seeking to do so is unconscionable and should not be permitted.

25 The complainant’s counsel argues first that the Tribunal has a discretion to deal with the matter under s95A of the Act and that there are proper grounds upon which the discretion could reasonably be exercised in the complainant’s favour.

26 Second, it is submitted (and we summarise the effect of the contention) that the arguments advanced by the respondent concerning the finality of the agreement and the decision of the Commission are irrelevant because the proceedings in the Commission did not result in any conclusions of fact and judgment.

27 Thirdly, counsel for the complainant submits that as Mr Kennedy had, to the respondent’s own knowledge an ongoing complaint before the Anti-Discrimination Board at the time of the conclusion of the matter in the Commission, and did not sign a Deed of Release, the respondent cannot now claim that the settlement reached in the Commission fully resolved all claims to do with the termination of Mr Kennedy’s employment.

28 Mr Veitch asks rhetorically, “Why should the Applicant in all conscience and equity be denied the opportunity to argue for compensatory damages when all he was given by his employer was what he was entitled to receive anyway?”

29 Mr Veitch also asks, “What exactly did the Commission finalise?” He notes that the proceedings were merely discontinued once it was agreed that certain moneys (which he claims were not compensatory damages but moneys owed by the respondent to Mr Kennedy) would be paid to Mr Kennedy. Consequently, there is no question of an Anshun estoppel arising, he says.

30 This issue is not easy to determine. It is difficult to discern with any precision what the Commission proceedings determined. There was no judgment that determined issues of fact. Unfortunately, neither was a Deed of Release prepared which outlined precisely the terms of the parties’ agreement and, in particular, their mutual obligations.

31 The particulars filed in the Commission refer to the complainant’s belief that his employment had been terminated in an unlawfully discriminatory fashion. That is, the particulars state his belief that it was because, among other things, he had complained to the Anti-Discrimination Board he had been effectively “sacked”.

32 On the available evidence, which does not include any documentation of the agreement reached by the complainant (or the Public Service Association on his behalf) and the Department, it would seem that the very least that could be said was that the agreement was meant to resolve any question to do with the reinstatement or otherwise of Mr Kennedy. Reinstatement would have been the usual remedy, unless it was impracticable, if the Commission had found in Mr Kennedy’s favour after a hearing on the merits. It would also be reasonable to conclude that the agreement was meant to put to rest any claims Mr Kennedy might have for outstanding entitlements.

33 It is a matter of common knowledge that conciliated agreements and settlements in all spheres of litigation are very often reached on a “without prejudice” basis, that is, without admission of liability. This undoubtedly would be so in the Commission as in other courts and tribunals. The fact that a conciliated agreement is reached cannot be relied upon to prove that Mr Kennedy was harshly dismissed or that the respondent admitted he was harshly dismissed. At most, it proves that Mr Kennedy agreed in return for certain benefits not to pursue the remedy of reinstatement based on a claim that he had been unjustly dismissed.

34 There is no direct evidence that Mr Kennedy was compensated per se for having been discriminated against or for having been unjustly dismissed. Nor is there evidence that he promised to withdraw or discontinue his discrimination complaint insofar as it traversed ground to do with the termination of his employment.

35 A suspicion arises that Mr Kennedy may be trying to have it both ways. One may reasonably conjecture that the respondent’s argument is not without some merit. However, this, in our opinion, is insufficient without a Deed of Release or some other direct evidence of the terms of the agreement.

36 The remedies for unjust dismissal and for unlawful discrimination may sometimes overlap. In this case, the complainant argues that he merely received benefits to which he was entitled from the respondent. Indeed, he claims that he settled for less than his true entitlements. He contends that he has received no compensation for his hurt due to the unlawful discrimination he suffered at the hands of the respondent. Whether he in fact did suffer such discrimination is another matter entirely. But if it were to be made out, he may be entitled to compensatory damages. Thus, it cannot be said with any certainty that Mr Kennedy promised to settle his discrimination complaint at the same time as he settled the question of his allegedly unjust dismissal.

37 It is for the party asserting an estoppel to prove it on the balance. We have been referred to both Commonwealth of Australia v Verwayen (1990) 170 CLR 394 and Anshun (1981) 147 CLR 589. In our view, neither authority is of assistance. We are not satisfied on the evidence before us that the promise or representation asserted by the respondent was in fact made. This disposes of the question of a promissory estoppel. Nor do we accept that Anshum applies. It seems to us that Anshun can apply only in circumstances where there has been a hearing on the merits and clear determinations of fact made. The Commission did not undertake such a task. In effect, it simply provided an avenue for an agreement to be reached between Mr Kennedy and the respondent, the terms of which are vague, without determining the relevant facts.

38 In our view, therefore, the complainant is not estopped from pursuing those points of claim that involve the termination of his employment.

Procedural Issue 2: Tribunal’s jurisdiction to determine matters raised in February 1995 complaint

39 The respondent submits that Mr Kennedy is not entitled to revisit those matters outlined in the complaint to the President dated 15 February 1995 as that complaint has been withdrawn. We understand Mr Veitch to argue that the withdrawal of that complaint was contingent upon certain undertakings being met by the Department. These were not met and therefore the Tribunal is entitled to determine the 1995 complaint.

40 The statute establishing the Tribunal, the ADT Act, circumscribes its jurisdiction. The Tribunal has no power to inquire at large into matters which take its interest.

41 Chapter 3 of the ADT Act provides that the Tribunal has such jurisdiction as is conferred by other Acts of Parliament. By way of Division 3 of Pt 9 of the Act, jurisdiction under that Act is conferred upon the Tribunal.

42 The jurisdiction of the Tribunal on this matter arises out of the operation of 96 of the Act. Section 96 says that the Tribunal shall hold an inquiry into each complaint or matter referred to it under …section 94(1). The President referred Mr Kennedy’s complaints under that section. A complaint referred to the Tribunal under s 94(1) is initiated by a “complaint” in writing, lodged with the President “in respect of any contravention of this Act”. That complaint must be lodged within six months after the alleged contravention is said to have been committed: s 88(3). The President has a discretion to accept a complaint outside that period where good cause has been shown: s 88(4).

43 In this matter what precisely was the “complaint” referred to the Tribunal under s 94(1)? The matter is simple. If the President referred the 1995 complaint to us, we have jurisdiction. The respondent argues that the Tribunal may be barred from dealing with the 1995 complaint based on some purported agreement not to revisit the complaint. This does not deprive the Tribunal of jurisdiction.

44 It is useful to briefly outline the subject matter of the 1995 complaint. On 23 January 1995 Mr Kennedy and his colleagues Margaret Penhall Jones and Kenneth Linnegar wrote to the Department outlining their concerns about various work-related matters (the joint letter). They alleged, among other things, “that management has failed to recognise the group dynamic within the August 1995 AESC intake group” (August intake group) which “ resulted in unfair and discriminatory decisions regarding older staff”. In particular, the joint letter asserted that older staff within this group had “their hours cut and appeared to be on the bottom of the eligibility list.”

45 On 15 February 1995 Mr Kennedy lodged a complaint with the Board alleging age discrimination. We understand that the scope of that complaint broadly corresponded to the matters raised in the joint letter.

46 On 1 October 1996 Mr Kennedy lodged a fresh complaint with the Board. In that complaint he refers to his letter of 15 July 1996 addressed to the Director-General of the Department. In that letter under the heading “Background” Mr Kennedy refers to his 1995 complaint to the Board.

47 It is clear from the President’s Report (which did not contain the original 1995 complaint) that the President proceeded on the basis that Mr Kennedy’s October 1996 complaint related to his unsuccessful May 1996 application and events after that application. Support for that view is to be found in the Complaint Summary, which refers to the fact that Mr Kennedy’s 1995 complaint was withdrawn. Critically, the annexure to the President’s letter dated 6 January 1998 addressed to the respondent states “[t]he Board is only dealing with incidents which he alleges occurred between May 1996 and the termination of his employment.”

48 Mr Kennedy told us in evidence that he understood that his complaint of October 1996 to the President was not confined to matters that occurred before May 1996 but also included matters raised in the February 1995 complaint. That was the reason he attached correspondence and material relevant to that period to the October 1996 complaint.

49 Whatever Mr Kennedy’s intention were at the time, it is apparent that the complaint referred to us by the President related solely to the period from May 1996. Accordingly, we have no jurisdiction to determine any allegations that fall outside this period.

Procedural Issue 3: Failure of Department to produce certain documents

50 Mr Veitch invites the Tribunal to draw the inference that documents summoned by Mr Kennedy, a number of which the respondent did not produce, would not have assisted the respondent’s case. He argues that it is simply implausible that the Department would as a matter of general practice have destroyed recruitment records for the relevant period.

51 In 1999 Mr Kennedy filed with the Tribunal two summonses which sought various documents from the respondent. In proceedings before Judge Murrell, Mr Kennedy, who was then self-represented, asserted that the respondent had failed to comply with these summonses. He argued that it was simply implausible that the respondent did not have in its possession the documents the subject of the summons. In addition he asserted that that some of the records provided to him were poor copies and unreadable.

52 This matter came before Judge Murrell on 18 August, 22 September and 6 October 1999. In affidavits dated 8 April and 21 May 1999 respectively, Mr Houston, for the Department deposed that he had caused searches to be made of the relevant records and files of the Department and none of the documents listed in the summons could be found ( other than those that had already been produced to the Tribunal). He was cross-examined on this evidence at some length.

53 On 6 October 1999 Judge Murrell determined that the response to the summons was satisfactory. She said, “ It has been submitted that Mr Houston had lied and I am of the view that he has not. In my opinion there really is no scope for a mistake. Consequently, I accept the identification evidence of Mr Houston that no further documents exist and I will make no further directions with a view to the applicant obtaining documents.”

54 Mr Veitch submitted that the Department’s explanation given through Mr Hoston is simply implausible given the significance of the documents and the Department’s statutory obligation to retain certain records for a minimum period. In essence Mr Veitch repeats the allegations made by Mr Kennedy in the proceedings before Judge Murrell. No fresh evidence has been produced that may cast doubt on the veracity of Mr Houston’s evidence. In the absence of any such evidence in our view it would be inappropriate to revisit Judge Murrell’s decision.

55 This is not a case where one party failed to explain why they did not produce material that may have, had it been tendered, assisted their case. Here an explanation was given, tested and ultimately accepted by the Tribunal. In these circumstances in our view it is not appropriate to draw the inference that these documents were not produced as they may have contained material not favourable to the respondent’s case.

Age Discrimination

Points of Claim

56 The points of claim filed in this matter were prepared without the benefit of legal representation. When the proceedings began, the scope of the complaint/s before the Tribunal was discussed. Mr Veitch confirmed that the points of claim filed on 12 February 1999 set out all the matters on which Mr Kennedy seeks to rely. The inquiry proceeded on that basis.

57 Under the heading, “Age Discrimination”, 14 particulars are set out. It is apparent that paragraph 4(a) and 4 (b) are not proper particulars but rather facts or contentions on which Mr Kennedy seeks to rely. Paragraphs 4(c), 4(d) and 4(e) relate to matters outside the scope of the complaints referred to the Tribunal by the President and are not relevant except as background.

58 We are left then with nine separate alleged incidents of age discrimination, some of which overlap. One incident in paragraph 4(n) is characterised by Mr Veitch as “indirect discrimination” and is dealt with later in these reasons. For convenience, we reduce the remaining particulars to nine alleged incidents of direct age discrimination as set out below.

Direct Discrimination

59 In Commissioner of Corrective Services v Aldridge [2000] NSWADTAP 5 an Appeal Panel of the Tribunal considered the leading authorities and said the following question should be determined in all cases of direct discrimination. “Did the respondent, on the ground of the complainant's race, treat the complainant less favourably than it treated or would have treated a person not of his race in the same circumstances or circumstances that were not materially different? This test involves two elements labelled by the Appeal Panel as ‘different treatment’ and ‘causation’.

60 For Mr Kennedy's case of direct discrimination to succeed he must establish on balance that: first, the Department treated him less favourably than a person not of his age would have been treated in circumstances that are the same or not materially different; and, second, if so, one of the reasons for this less favourable treatment was his age.

Claim 1: Failure to appoint Mr Kennedy to position of Award Enquiry Officer on three occasions (Points of Claim par. 4(f) and 4(h))

61 Mr Kennedy was interviewed for the position of Award Enquiry Clerk with the AESC in May 1996, August 1996 and February 1997. Each time he was not recommended for appointment. We will examine each interview and ask whether the elements of unlawful discrimination have been made and then proceed to determine whether considered together the evidence supports a finding that the respondent unlawfully discriminated against Mr Kennedy.

May 1996 Interview

62 On 8 May 1996 Mr Kennedy was interviewed for placement on the eligibility list for position of Award Enquiry Officer, Clerk Grade 1/2 (Recruitment No 1996/065) by an interview panel composed of Nicole Vlahos, Derek Oliver and Sylvia Langan. At all relevant times, Ms Vlahos was a team leader of the AESC and at various times acted as Mr Kennedy’s supervisor. His application was unsuccessful. There is no reliable evidence before us on the number of people interviewed and/or placed on the eligibility list.

63 The respondent, through Warwick McDonald (then) Director-General of the Department, in a letter to the Board dated 23 February 1998, advised that all recruitment records for that position had been destroyed, and accordingly could not “advise why his [Mr Kennedy’s] application and performance at interview was less satisfactory than other applicants.”

64 In oral evidence, Ms Vlahos said she could not recall why Mr Kennedy’s application was unsuccessful. In a document prepared shortly after the interview and in response to a complaint made by Mr Kennedy, Ms Vlahos stated that Mr Kennedy’s performance at interview was inadequate (Exhibit A6).

65 Mr Kennedy says age infected the decisions of all three panel members. He claims Ms Langan was a close friend of Mrs Riley (whom Mr Kennedy had previously accused of unlawful age discrimination) and was biased against him on that account. Ms Vlahos was not favourably disposed to him because he had laid allegations of age discrimination against her in 1995. In turn, Ms Vlahos influenced the third member of the panel, Mr Oliver who, asserts Mr Kennedy, could not be considered “independent” as he had only left the Department a few months earlier and was an associate of Ms Vlahos.

66 Ms Vlahos denied that Mr Kennedy’s age, or the fact he had made complaints about her, played any role in any decision made by her in her capacity as team leader of the AESC and, in particular, her decision not to recommend him for the position for which he was interviewed on 8 May 1996.

Findings and Conclusions

67 Mr Veitch contends that the panel’s treatment of Mr Kennedy and its subsequent decision not to recommend his placement on the eligibility list constitutes different treatment.

68 We deal first with the alleged different treatment afforded Mr Kennedy in the interview itself. The May 1996 interviews are attacked on the basis that “open-ended” questions were asked by the panel. It is contended that these favour younger applicants. No questions were asked about EEO (equal employment opportunity) matters. Mr Kennedy claims also that he was treated less favourably than other applicants.

69 For Mr Kennedy’s claim of direct discrimination to succeed the evidence must support a finding that he received different treatment.. There is no evidentiary basis to support Mr Kennedy’s claim that he was treated differently to other applicants, though it is clear and we accept that he believed this to be the case. It appears that the panel asked all applicants broadly similar questions. Mr Kennedy says the “open-ended” style of questions and the failure to include any questions to test his knowledge of EEO principles disadvantaged him as an older employee. He may be correct. This, however, is not a proper basis for grounding a complaint of direct discrimination, which rests on establishing different treatment.

70 We turn now to the decision not to place Mr Kennedy on the eligibility list. Did this constitute less favourable treatment? In our view, declining to place an applicant on an eligibility list could constitute less favourable treatment when compared to a person placed on the eligibility list. Can it be said however that Mr Kennedy was treated less favourably than an employee in comparable circumstances but not of his age? We know that the majority of applicants who were interviewed (and appointed) were in their twenties, but little else. Mr Veitch has not taken us to an actual comparator nor is there any evidence before us that would assist us to identify one.

71 We must therefore look to a hypothetical comparator, namely an employee in the same or not materially different circumstances to Mr Kennedy. This is not a straightforward exercise and raises questions about Mr Kennedy’s circumstances. Did he, as Ms Vlahos’ report (Exhibit A6) indicates (and he denies), perform poorly at interview? It is apparent that what seems to be a straightforward question is almost impossible to determine without first exploring the issue of causation.

72 A complainant seeking to establish that age (or some other ground prescribed by the Act) played a role in a decision of an interview panel faces an onerous task. The notes (if any) taken by panel members, even where they survive, are not made available to applicants. The deliberations that led to the panel’s final decision are not held in public or recorded. The recollection of panel members is often blurred where a significant time has elapsed since the interview. This is exacerbated where the interviewer sits on many panels, as is often the case in the Public Service. Even where a ‘textbook’ interview has been conducted, factors other than merit may consciously or otherwise creep into the decision. In short, if a panel has allowed improper factors to contaminate their decision it is extremely difficult for a complainant to establish that this was so. While we acknowledge these practical difficulties, the complainant is not excused from discharging their evidentiary onus.

73 The respondent is unable to tell us why the panel did not recommend Mr Kennedy because the relevant records are said to be no longer available. Nor could Ms Vlahos, the only member of the interview panel called to give evidence, give us much assistance. She could not recall why the Panel did not recommend Mr Kennedy. We are left then with her report produced shortly after the interview (Exhibit A6), which gives some insight into the decision (or her view of that decision).

74 The central proposition advanced for Mr Kennedy is that age must have been a factor in the decision of all three panel members. This proposition rests largely on a ‘guilt by association’ hypothesis. Ms Vlahos was simply continuing the Department’s purported plan to “get rid of older staff”. She in turn influenced Mr Oliver who was not a true independent as he had only recently left the respondent’s employ and in any event was close to Ms Vlahos. (The sole evidence for this assertion was that Mr Oliver was a presenter at a conference at which Ms Vlahos also spoke, at best a weak argument.) Ms Langan was an associate of Mrs Riley and therefore it follows held unfavourable views about older employees. This submission is at best speculative.

75 We are not persuaded that the evidence supports a finding that age played a role in the decision not to appoint Mr Kennedy. Accordingly, it is not necessary for us to return to determine whether different treatment was in fact afforded.

November 1996 Interview

76 On 22 November 1996 a three-person panel interviewed Mr Kennedy for the position of Award Enquiry Officer. The panel members were Ms Hume, (DIR Change Program Section), Ms Langan and Mr Travers (an independent). He was unsuccessful.

77 We do not have the benefit of any documentary material prepared by the panel. Mr McDonald, then Director-General of the Department, in a letter to the Board dated 23 February 1998 refers to material in the Department’s file which he claims indicates that “Mr Kennedy did not meet the selection criteria of an awareness of industrial awards and associated legislation; ability to work as part of a team; ability to quickly identify customer needs and provide succinct responses and the commitment to provide a quality service. The successful applicants were assessed as meeting all of the selection criteria established for the positions.”

78 Following this round, three candidates aged 25, 26 and 46 years were appointed. Another five, aged 49, 30, 30, 25 and 24 were placed on the eligibility list. We do not know how many people applied for this position or their ages.

79 The paucity of evidence in respect to this unsuccessful application leads us to conclude that the necessary elements of a claim of direct discrimination have not been made out.

February 1997 Interview

Background

80 In January 1997 the Public Sector Management (General) Regulation 1996 (the Regulations) was amended to allow Department Heads, for a limited six months period, to recommend the appointment of long term temporary employees to so-called “permanent positions” providing certain criteria were met. The relevant regulation provided:

For the purposes of this clause, a "long-term temporary employee" is a temporary employee:

whose employment as a temporary employee falls within a continuous employment period of at least 2 years.

A long-term temporary employee may, with the approval of the Public Employment Office, be appointed to an officer's position (other than a senior executive position) in a Department if the appropriate Department Head has made a recommendation in accordance with this clause for the appointment of the employee to the position.

A recommendation for the appointment of a long-term employee to an officer's position may be made in the following circumstances:

the employee was initially employed for a specified purpose or for a limited period only,

ongoing work is available in respect of the employee in the Department,

the appropriate Department Head is satisfied that the employee has the relevant skills, qualifications, experience, work performance standards and personal qualities to enable the employee to perform the duties of the position concerned.

Any such recommendation may only be made within the period of 18 months from the commencement of this clause.

81 Shortly before this regulation came into effect, approval was granted to the Department to upgrade a number of positions nominated by the Department, including 30 positions of Award Enquiry Officers, then classified as Grade 1/2. Dr Col Gellatly, Director-General, Premier’s Department, in a letter dated 23 December 1996, advised:“[I]t is understood that the new gradings reflect the job evaluation outcomes for the existing work. There is no substantial change in the duties and responsibilities of the positions. It is therefore, appropriate that the existing occupants be given the opportunity to be considered for the positions.” Approval was given for the Department to seek expressions of interest from the officers within the Department without first advertising the positions externally or within the Public Service Notices.

Evidence

82 On 3 February 1997 Mr Kennedy was interviewed for the position of Grade 3/4 Enquiry Clerk by a panel consisting of Mrs Eugenia Vlahos and Paul Hollis. Mr Hollis was the Department’s Manager Business Support and had commenced in that position in November 1996.

83 Mr Kennedy protested that Mrs Vlahos was to be the convener of that interview panel. He questioned her ability to objectively determine his application as he had made a number of serious allegations about her.

Mr Kennedy’s work performance

84 The Panel had before it written assessments prepared by Mrs Riley in respect of each applicant. Her assessment of Mr Kennedy (Exhibit A7, Attachment A) outlined what she identified as the “key accountabilities” for an Award Enquiry Officer. These were knowledge of industrial awards and associated legislation; ability to communicate effectively as part of a team and in a group environment; quickly identify customer needs and provide succinct responses, and provide a quality customer service. In her report, she noted, “it was difficult to measure Mr Kennedy’s knowledge of IR [industrial relations] matters as he rarely seeks advice from colleagues. However, as he was unsuccessful on the last occasion he applied for an Award Enquiry Officer on the ground of his lack of knowledge of Industrial Awards and Associated Legislation”. She further noted that he did not display good communication skills and did not have the capacity to work as part of a team. Based on a sample survey said to have been conducted over a three-month period (30 October 1996 to 30 January 1997) Mr Kennedy answered an average of 33 calls per day against a Section average of 55.

85 Mrs Riley concluded: “Mr Kennedy has been retained in the past only because of continuing staff shortages. It should be noted that in the past Mr Kennedy has been unsuccessful on 2 previous occasions for appointment as an Award Enquiry Officer Grade 1/2 …the panel at the last interview cited four areas where Mr Kennedy did not meet the required essentials:

Ability to be a part of a team

Ability to provide succinct answers

Commitment to quality customer service.

It is my opinion, after consultation with team leaders, that Mr Kennedy is completely unsuited for the regraded position of Clerk - Award Enquiry Service Grade 3/4.”

86 Mrs Riley denied that her assessment was in any way influenced by Mr Kennedy’s age or the fact that he had lodged complaints against her or other managers in the Department.

87 Mrs Riley said she did not directly supervise Mr Kennedy but did have the opportunity to observe his performance. She said Mr Kennedy was constantly late for work and on one occasion spoke to him about that. His punctuality was often a topic at staff meetings.

88 Mrs Riley was asked in cross-examination how she had formed the view that Mr Kennedy’s knowledge of IR matters was inadequate, as she had no direct dealings with him. She said her report was not based on her own observations but drew on material and documents given to her by others (including the assessments of other interview panels.) She said she obtained this information from monthly meetings held with team leaders. Mrs Riley said she could not recall anyone raising Mr Kennedy’s performance with her or if any team leader in fact ever discussed it with him.

89 Ms Vlahos and Mrs Vlahos said they could not recall ever speaking to Mr Kennedy about his performance. Nor could they recall raising his performance with their manager or any other member of the management team.

90 Mrs Riley said the practice in the AESC was that performance matters were only raised with staff member “when things got out of hand”. As a first step, it would be suggested that the employee undertake some training.

91 In answer to a question from the Tribunal, Ms Vlahos explained that if a problem became apparent with a particular employee the relevant team leader would raise that with a Section Manager who would organise a team meeting to discuss how the matter was to be dealt with. If the matter could not be resolved within the team, it was then referred to the manager of the section.

92 Mrs Vlahos said she did not recall counselling Mr Kennedy about the accuracy of his advice to callers or anyone else doing so. She said she recalled that Mr Kennedy never asked any questions either of her or other team leaders, with the exception of John Forrester, which she saw as highly unusual. She said she never raised this with Mr Kennedy “because I was trying to avoid further problems”.

93 Mrs Vlahos said she was aware Mr Kennedy had lodged a complaint alleging age discrimination against Mrs Riley in January 1995. It was an “open secret” within the AESC. She said she could not remember the details of each complaint made by Mr Kennedy - “there were numerous”.

Assessment Panel

94 Following the interview Mrs Vlahos and Mr Hollis signed off on a document headed “Assessment Panel Report – Unsuccessful Applicant …Patrick Kennedy” dated 14 February 2001. It states: “Mr Kennedy was vague in his answers and ...did not demonstrate clear and succinct communication skills; his answer to a question concerning award coverage was lacking; he incorrectly stated that Award-free employees did not have access to benefits afforded to Award employees; while he demonstrated a level of knowledge of the relevant provisions of the IR Act 1996, his answers to a question concerning the unfair dismissal provisions of the Act “demonstrated a lack of understanding of the Unfair Dismissal Provisions [of the IR Act].” In not recommending his appointment, the panel concluded “Mr Kennedy does not have the level of knowledge, the communication skills nor the capacity to work in a team environment necessary to undertake the higher level duties of AESC upgraded positions.”

95 In evidence, Mr Kennedy said that the interview was conducted in a strained atmosphere. Ms Vlahos questioned him “like an adversary” and did not extend him the usual courtesies such as introducing him to Mr Hollis. According to Mr Kennedy, she was pushy and belligerent. Mr Kennedy claimed it was an excessively lengthy interview.

96 Both Mr Hollis and Mrs Vlahos deny that age played any part in their decision not to recommend Mr Kennedy for the position. According to Mr Hollis, at the time of the interview he was broadly aware that Mr Kennedy had made various complaints but denies that these complaints played any part in his determination.

Findings and Conclusions

97 We deal first with the proposition advanced by Mr Veitch that the procedure surrounding the February 1997 interviews was fundamentally flawed (as it related to Mr Kennedy). In essence, it is argued that contrary to the intent of the amendments concerning temporary employees, Mr Kennedy was forced to “compete” with permanent colleagues who were seeking a “promotion”. The clear intent of Clause 10A, submits Mr Veitch, was to allow long-term temporaries to be reclassified as “permanent” providing the conditions set out in s 10A(3) were met. (It is not in issue that Mr Kennedy satisfied the requirements of cl 10A(3)(a) and cl 10A(3)(b).)

98 Instead, contends Mr Veitch, the respondent required Mr Kennedy to jump another hurdle namely competitive selection. (See s 26(3) of the Public Sector Management Act (NSW) 1988). Consequently, Mr Kennedy, rather than just being assessed against the requirements set out in cl 10A(3), found himself competing with permanent employees in the so-called “Stage One” interviews. (According to Mr Kennedy, the only other temporary considered in that round was Keith Linnegar, who was in fact successful in his application.) Mr Veitch asserts that had Mr Kennedy been given the opportunity to apply at Stage 2, when the jobs were thrown open to external applicants, he would have had a strong claim for the position. Had that occurred Mr Kennedy would have had the benefit of a three-person interview panel and Mrs Vlahos’ influence would have been diluted.

99 In our view, this submission is something of a distraction. The evidence is clear that the purported reason Mr Kennedy was unsuccessful was because he did not meet the selection criteria - not that other candidates were more meritorious. This was not a case where the number of applicants who met the relevant criteria exceeded the number of available positions obliging the Panel to “competitively select”. Rather, as Mr Veitch points out, after the internal selection process was completed the respondent looked externally to fill six positions.

100 Mr Veitch submits that the respondent erred in subjecting Mr Kennedy to an interview as clause 10A did not mandate that a temporary employee be interviewed before appointment. We agree that there appears to be nothing that would have prevented the Director-General or their delegate appointing Mr Kennedy without interview (as Mr Veitch contends should have happened). Equally, in our view, it was entirely open to the Director-General to seek advice from an interview panel.

101 But even if we are wrong on this point, and subjecting Mr Kennedy to a “round one” interview was in fact a departure from some established rule or practice this could only be relevant if it is established that the reason for this departure was on the grounds of Mr Kennedy’s age (or victimisation). By itself, it does not make out a claim of unlawful discrimination (or victimisation). A number of assertions have been made that the Department employed the process it did to disadvantage Mr Kennedy. We see no evidence to support that contention.

102 Neither party made submissions about whether the decision not to appoint Mr Kennedy constitutes less favourable treatment within the meaning of s 49ZYA(1)(a) of the Act. Mr Veitch merely asserts that younger applicants were more favourably treated. Again, no attempt has been made to identify an actual comparator.

103 Whether Mr Kennedy was afforded less favourable treatment turns on the characteristics to be attributed to the hypothetical applicant in the same or not materially different circumstances. If our hypothetical employee is a temporary employee, with two and a half years experience and proven competency in their position (as Mr Kennedy contends was the case) on the face it would appear that less favourable treatment is made out. If poor performance at interview is thrown into that construct, the opposite conclusion may be reached. Before we determine this, we will first consider the issue of causation.

104 The panel had before it Mrs Riley’s damning assessment of Mr Kennedy. It is not altogether clear the extent to which this report featured in its deliberations. It is not mentioned in the panel’s assessment, which appears to be have been based exclusively on Mr Kennedy’s interview. However, while we cannot determine the weight the panel placed on the report, it is implausible that it could have been ignored.

105 We understand Mr Veitch to suggest that Mrs Riley had no basis to conclude that Mr Kennedy was “completely unsuited” to be an Award Enquiry Officer and therefore the Tribunal is entitled to draw the conclusion that other factors, namely age discrimination (and victimisation), must have influenced her assessment.

106 There is scant evidence to support either of the divergent views about Mr Kennedy’s work performance. Mr Kennedy says he was conscientious and competent, a view that finds support from his colleague, Ms Penhall Jones (who left in January 1995) and Ms Graham in her email dated 30 October 1996 to the Director-General, Warwick McDonald.

107 Mrs Riley’s assessment stands in sharp contrast. She had limited firsthand dealings with Mr Kennedy and readily admits that her conclusions were based on advice the views of others. Yet Mrs Riley could not recall anyone ever raising Mr Kennedy’s purported performance shortcomings with her. This is consistent with the evidence of Mrs Vlahos and Ms Vlahos.

108 In the absence of any adverse reports, did Mrs Riley have any basis to conclude that Mr Kennedy was completely unsuited to the position? An examination of her report shows that she looked at six criteria. Of these, she apparently relies on her own observations in respect of three matters: ability to communicate; ability to quickly identify customer needs and the application of EEO, OH&S principles. She acknowledges that she was unable to measure Mr Kennedy’s ability in the two areas of industrial relations knowledge and customer service, but assumes he would not have the requisite skill and knowledge as he had failed to satisfy previous interview panels that he met these two criteria. Mrs Riley claims she received advice from staff on one criterion only - Mr Kennedy’s purported reluctance to assist with training.

109 If Mr Kennedy was “completely unsuited”, why was his contract renewed on fourteen separate occasions and no effort made to counsel or train him? Mrs Vlahos’ evidence gives some insight. In her view, raising a concern with Mr Kennedy was likely to generate fresh complaints and be more trouble than it was worth. Mrs Vlahos may have thought so but there is no evidence that other team leaders shared that view. If Mrs Riley was correct, it means that AESC management tolerated an incompetent employee for two and a half years without attempting to address the problem. While staff shortages referred to in Mrs Riley’s report might go some way to explaining this management inertia we are left with the uneasy feeling that other factors may have influenced her final assessment. We shall return to this point. However, on the evidence before us we are not persuaded that age played any role in Mrs Riley’s assessment despite Mr Kennedy’s strong belief that it did.

110 Both members of the panel deny that Mr Kennedy’s age played any role in their respective or collective deliberations. As we understand Mr Veitch to argue, we are entitled to infer that age played a role in Mrs Vlahos’ decision because of her part in earlier decisions made by the Department designed purportedly to disadvantage older employees. We have examined the evidence about the Department’s decision to reduce hours for a short period in early 1995. We are not persuaded that it can be characterised as a decision designed to “get rid of older staff”. Nor does the evidence before us support a finding that Mrs Vlahos disadvantaged Mr Kennedy (or others) because of age in any decision made before the interview. It may well be that Mrs Vlahos was not kindly disposed to Mr Kennedy because he made complaints about her (and her daughter) and criticised her management skills. It may be that Mr Kennedy felt vulnerable and on the outer in a workplace numerically dominated by young twenty-something employees. However, this does not establish that age played any role in Mrs Vlahos’ decision.

111 Even if we are wrong, how is Mr Hollis’s role in the decision to be explained? The evidence shows that before the interview he played no role in managing the AESC; he came to the interview panel with a fresh? Perspective? He was an experienced public servant who was no novice in interviewing job applicants. Within the public sector hierarchy Mrs Riley was his junior.

112 There is no evidence that Mr Hollis held negative views about “older employees” or considered them unsuitable for employment in the AESC. Nor do we find it plausible that he was so uninterested in the interview process that he was prepared to sign off on a document, which he acknowledged in evidence was likely to lead to Mr Kennedy’s contract being terminated, out of deference to Mrs Vlahos. We accept that he honestly believed that Mr Kennedy’s answers at interview were inadequate.

113 We are not satisfied on balance that the evidence supports a finding that age played a role in the panel’s decision.

Failure to appoint on three occasions

114 We conclude that the evidence does not support that age was a factor in any of the decisions not to appoint Mr Kennedy. However, we must also examine the decisions together to determine if such an inference can be drawn.

115 Mr Kennedy’s case is based largely on circumstantial evidence. This is not unusual. As observed by the Western Australian Equal Opportunity Commission in Alone v State HousingCommission ("Homewest") (1992) EOC 92-392 at p. 78,789, discrimination, of its very nature, is "... ordinarily something which is manifested indirectly and proved (where it exists) by evidence normally called circumstantial." While that comment concerned race discrimination we believe it applies equally to age discrimination.

116 In the absence of direct and positive evidence, a complainant may rely on inferences drawn from the primary facts: see Fenwick v Beveridge Building Products Pty Ltd (1986) EOC 92-147; Khanna v Ministry of Defence(1981) I.C.R. We are entitled to take into account all the circumstances surrounding the respondent's treatment of Mr Kennedy, to make a finding of unlawful discrimination. However, such a finding cannot be inferred where more probable and innocent explanations are available on the evidence: Department of Health v Arumugam (1987) EOC 92-195; (1988) VR 319; Hafez v Warilla Women's Refuge Ltd, Clegg and McEwan [3 of 1993 & 40 of 1995] NSWEOT.

117 Can it be said that the evidence taken as a whole supports the inference that age was one of the reasons Mr Kennedy was not appointed to the three positions for which he applied?

118 On the limited evidence before the Tribunal, there is no discernible pattern of age discrimination in the Department’s appointment decisions. It is true that younger people were well represented among the successful applicants in the November 1996 and February 1997 interviews. But the large numbers of people in this age group who entered the AESC along with Mr Kennedy may innocently explain this outcome.

119 We are left therefore with Mr Kennedy’s strong and genuinely held belief that age played a role in the decision of the three panels not to appoint him. The evidence before us does not support such a finding. In reaching this assessment, we have not confined our examination to the evidence concerning the three failed interviews but have looked at all the evidence which for reasons of convenience, we have not referred to all of this evidence at this point.

Claim 2: Delayed release of job application results (Points of Claim par. 4 (i))

120 Mr Kennedy said he was not advised of his failed application until after he asked Ms Vlahos for the results on 29 May. According to Mr Kennedy, this delayed notification stood in contrast to the treatment afforded other employees some of whom, he claims, were advised as early as 13 May.

121 We accept Mr Kennedy’s evidence on this point. In our view, such treatment constitutes less favourable treatment. Can it be said that one of the reasons Ms Vlahos delayed notifying Mr Kennedy about his results was because of his age? Mr Kennedy believes this to be the case but there is no direct evidence to support that belief. Ms Vlahos has no useful recollection of this incident. Any number of reasons could explain why Ms Vlahos subjected Mr Kennedy to this less favourable treatment. However we are not satisfied on the evidence before us that an inference can be properly drawn that one of the reasons Ms Vlahos acted as she did was Mr Kennedy’s age.

Claim 3: Post Interview counselling

122 On 3 June 1996 Ms Vlahos met with Mr Kennedy at his request to discuss his unsuccessful application. In a note prepared shortly after (Exhibit V1, Attachment 7), Mr Kennedy set out his account of that meeting. It states that in the course of the meeting Ms Vlahos became defensive and expressed the view that she should have a union or EEO representative present.

123 In cross-examination, Ms Vlahos said she could not recall that meeting. When pressed she said she did recall Mr Kennedy becoming aggressive towards her but did not recall the details of that discussion or why his application was unsuccessful.

124 It is apparent from the evidence that the meeting between Ms Vlahos and Mr Kennedy was less than pleasant. At that meeting, Mr Kennedy expressed the firm view that the interview process was flawed, a view not shared by Ms Vlahos and no doubt vigorously expressed.

125 Both attest that they had acted in an entirely professional manner. It was the other party who acted unreasonably and lost control.

126 Whatever the truth, the fact that one party sought to enlist the assistance of a third party points to the fact that the meeting became heated. In our view the accounts given by both witnesses of their own professionalism and detachment is somewhat implausible. We find that it is more likely than not that both parties at some stage during the meeting acted in a confrontational manner.

127 The critical issue is not whether Ms Vlahos became angry with an employee under her supervision (at that meeting) but whether that treatment was less, favourable than that she would have afforded an employee not of his Mr Kennedy’s age in comparable circumstances.

128 Submissions proceeded on the basis that it was enough to establish that this treatment constituted a detriment. While it may be that this treatment could constitute a detriment (and we proceed on the basis that it does) it must also be established that the treatment was different. We have no evidence of Ms Vlahos’ treatment of an employee in similar circumstances. For all we know this may have been the only meeting of its kind conducted by Ms Vlahos.

129 Therefore, we must ask whether the treatment afforded Mr Kennedy could be said to be less favourable than Ms Vlahos would have afforded a hypothetical employee not of Mr. Kennedy’s age. The relevant hypothetical comparator in our view would be a disgruntled employee who holds the strong and genuine view that they were not appointed to a position for reasons other than merit.

130 At the relevant time, Ms Vlahos was a relevantly inexperienced manager. She had limited (if any) experience of counselling employees. Here she was confronted with an employee convinced that the panel she had convened had contrived to deny him a place on an eligibility list. We are not persuaded that in those circumstances different treatment would have been afforded to an employee not of Mr Kennedy’s age. Even if we are wrong on this point we see no evidence to substantiate a finding that Ms Vlahos treated Mr Kennedy in the way she did because of his age.

Claim 4: Questions asked of complainant at second interview (August 1996) disadvantaged Mr. Kennedy as an older employee (Points of Claim cl 4(m))

131 It is not in issue that the November 1996 interview panel asked the same questions of all interviewees (including Mr. Kennedy). Mr. Kennedy says these questions were designed to advantage younger applicants.

132 To succeed with a claim of direct discrimination Mr. Kennedy must establish that, on balance, he was subjected to different treatment. This has not been made out. Therefore it is unnecessary for us to determine whether the offending questions could be said to favour younger applicants.

133 This claim is misconceived and therefore dismissed.

Claim 5: Internal grievance dealt with in a dismissive manner (Points of Claim cl 4(j), 4(k) and 4(l)

134 On 15 July 1996 Mr Kennedy lodged a complaint with the Department “concerning the handling and the filling of the multiple Award Enquiries Officers positions by Mrs Riley and panel convenor, Ms Vlahos”. In that letter Mr Kennedy outlined his concerns about the composition of the panel, the questions asked, the manner in which the results of the interviews were distributed, the post-interview meeting held with Ms Vlahos and other complaints of a more general nature.

135 By letter dated 26 July 1996 Warwick McDonald (then) Assistant Director-General Operations responded to that complaint. He stated he had considered detailed reports from Mrs Riley and Ms Vlahos and that he saw no evidence of improper conduct. He invited Mr Kennedy to discuss his concerns.

136 Mr Kennedy took up this invitation and met with Mr McDonald on 19 September. Mr Kennedy gave evidence that at that meeting Mr McDonald said to him words to the effect that if he made a further complaints to the Board he would need to consider his position within the Department. Mr McDonald denies this.

137 Mr Kennedy claims that his 15 July complaint was dealt with in an inappropriate and dismissive fashion as evidenced by: First, the respondent’s failure through Mr McDonald to adequately address his complaint; second, the release of confidential details about that complaint; third, Mr McDonald’s threat of dismissal. We deal with each in turn.

Failure to adequately address the 15 July allegations/release of confidential details

138 Within 11 days of the complaint being lodged, Mr McDonald responded in writing to Mr Kennedy and extended an invitation to meet.

139 It is contended that the release of details of the claim to Mrs Riley and Ms Vlahos is evidence of less favourable treatment. In our view, the investigation into the complaint cannot be attacked on this basis. A complaint was made about them. It was reasonable for Mr McDonald to ask for their response.

140 There is always a risk that any answer prepared by an alleged perpetrator will be self-serving, at least to some extent. At the very least, the answer will be open to attack for a lack of independence, the hallmark of any proper investigation. Regrettably, it would appear from Mr McDonald’s report that no attempt was made to obtain input from any independent source. Mr McDonald was left therefore to rely on two competing accounts about how Mr Kennedy was treated. He preferred that given by Ms Vlahos and Mrs Riley.

141 While it would appear that the investigation into Mr Kennedy’s complaints fell short of the ideal, it would appear that Mr McDonald did not see his report as a final decision. He gave Mr Kennedy an opportunity to discuss his complaints further, an opportunity he readily took up.

142 Whatever the shortcomings of this investigation, we are not satisfied on balance that Mr Kennedy was treated less favourably than a comparable employee not of his age. Nor do we find that one of the reasons Mr McDonald handled the investigation in the manner he did was because of Mr Kennedy’s age.

Threat by Mr McDonald

143 The only evidence about the meeting where Mr McDonald allegedly threatened Mr Kennedy is that given by them. The evidence stands in stark conflict.

144 Mr Kennedy’s email to Mr McDonald immediately following the meeting made no reference, express or implied, to any threat. Nor was it mentioned in what can only be described as the volley of emails that followed from Mr Kennedy.

145 We understand Mr Veitch to argue that this reticence on Mr Kennedy’s part to expose Mr McDonald must be seen in the context of Mr Kennedy’s understandable concerns over job security. This argument is persuasive but does not explain why the allegation was not raised in any of the correspondence following Mr Kennedy’s dismissal or in the particulars of the dismissal claim filed on behalf of Mr Kennedy with the Commission. Nor does it explain why it was not mentioned in the complaint lodged with the Board on 3 October 1997. In our view, it simply beggars belief that Mr Kennedy would not have mentioned the threat in the latter, which set out a number of serious and detailed allegations about the conduct of Mr McDonald.

146 It would appear that this alleged threat was first mentioned in the Points of Claim filed with the Tribunal on 12 February 1999. In our view, the threat can only be seen as a recent invention and we find that Mr McDonald did not threaten Mr Kennedy in the manner alleged.

Claim 6: Denial of opportunity to perform outside promotional activities (Points of Claim cl 4(n))

147 This claim has been identified in submissions as a complaint of indirect discrimination and is addressed at [156] of these reasons.

Claim 7: Negative Treatment (Points of claim par. 4(g))

148 Mr Kennedy claims he was not given the same opportunities as younger members of staff to undertake the full range of duties of Award Enquiry Officers such as answering correspondence. Instead, he contends, he was required to spend a greater proportion of his time, in comparison with his younger colleagues, handling phone enquiries. It is common ground that the vast majority of time of Enquiry Officers was spent on the phone.

149 Answering phone enquiries was the core work of the AESC. As Mrs Riley reveals, it was considered by staff and employees alike to be stressful and boring. Welcome relief was provided by alternative duties such as answering correspondence. Mr Kennedy claims that he was given fewer opportunities than younger staff members to spend time away from phone duties. Ms Penhall-Jones supports this claim.

150 A careful examination of Mr Kennedy’s evidence reveals that it is not entirely clear to what extent he received fewer “off phone” opportunities. Initially he claimed he “saw none” of the correspondence work. He later qualified that statement and said what he meant was that he had fewer opportunities than other staff members. Ms Penhall-Jones’ evidence is of limited value given that she had little opportunity to observe the allocation of this so called “bonus work”, as she left the AESC in January 1995.

151 The evidence before us on this point is at best inconclusive. In reaching that assessment we appreciate the real and practical difficulties Mr Kennedy has in providing reliable evidence about conduct that occurred over a period of spanning two and a half years. However, we are not persuaded on what is before us that Mr Kennedy’s assessment about the uneven allocation of non-phone work is established.

Indirect Discrimination

152 Mr Kennedy’s complaint of indirect discrimination on the ground of age is contained in submissions filed the Tribunal on…. That document details nine separate claims of indirect discrimination.

153 These can be reduced to three key propositions. First, the respondent required Mr Kennedy to accept the same salary as that paid to new graduates on commencement and in so doing denied Mr Kennedy promotional and other opportunities; second, the respondent imposed a condition that only permanent officers undertake promotional work on behalf of the Department; third, Mrs Riley introduced a “secret” requirement that Mr Kennedy and Mr Linnegar meet time standards when answering AESC calls. This requirement, it is asserted, was not imposed on younger staff members.

154 Section 49ZYA(1)(b) of the Act sets out the test of so-called indirect discrimination on the ground of age. Indirect discrimination occurs when a requirement or condition, neutral in its terms and apparently applying equally to all persons, in fact disadvantages a particular group. For Mr Kennedy’s claim of indirect discrimination to succeed, he must establish on balance: first, that the respondent required him to comply with a requirement or condition; second, that a substantially higher proportion of employees not of his age, comply, or are able to comply, with that requirement or condition; third, the requirement or condition is not reasonable having regard to the circumstances of the case; and fourth he does not comply, or is not able to comply, with the requirement or condition.

Claim 8: Flat salary structure on commencement

155 For the reasons set in the section headed Procedural Issue Two of these reasons this claim falls outside the scope of our inquiry.

Claim 9: Denial of promotional opportunities

156 Mr Veitch identifies the relevant condition as the requirement that only permanent staff carry out promotional work for the Department. We must first consider, if Mr Kennedy’s evidence was accepted, whether the respondent’s purported acts would constitute unlawful conduct under s 49ZYB(2)(b) and s 49ZYA(2)(c) of the Act.

157 We proceed on the basis that the requirement identified by Mr Veitch constitutes a requirement for the purpose of s. 49ZYA(1)(b). Having identified a relevant requirement it is then necessary to define the group (or individuals within the group) said to be subject to indirect discrimination (the status group). We understand Mr Veitch to nominate the relevant status group as older staff members of the AESC. No guidance is given as to how this group is defined. Submissions proceed on the basis that Mr Kennedy and Mr Linnegar are the sole members. The comparator group is referred to in submissions as “the younger group of recent graduates”. Again, no guidance is provided as to how this group should be defined.

158 Having identified the two groups, the complainant is then required to show that a substantially higher proportion of persons belonging to the comparator group are able to comply with the condition or requirement than members of the status group. That is a comparison needs to be made between these two groups.

159 Missing from the evidence is any material, which would enable us to clearly identify and quantify the membership of these two groups. Nor is there any evidence that would enable us to estimate respective compliance levels.

160 It is clear that a complainant seeking to rely on s 49ZYA (1)(b) must define with a level of precision both the group which they claim to be adversely affected by the relevant requirement and the comparator group. A comparison must then be made between the compliance levels of these two groups. In this case, this has not been done. Before us are broad assertions that members of an indeterminate group (the younger group of recent graduates) are more ably to meet the Department’s requirement than Mr Kennedy and members of his group. No attempt been made to address the third element necessary to establish indirect discrimination ie whether having regard to the circumstances of this case, it was unreasonable for the Department to impose such conditions.

161 As the necessary elements of a claim of indirect discrimination have not been made out, this claim is dismissed.

Claim 10: Time Standard requirements

162 Again no attempt has been made to define the relevant groups and respective compliance levels. As the necessary elements have not been identified, this claim must fail.

Age Discrimination –Summary

163 For the reasons as et out the complaint of age discrimination is dismissed.

Victimisation

164 In Shaikh v Commissioner, NSW Fire Brigades (1996) EOC 92-808, the former Equal Opportunity Tribunal set out at p 78,986, what it described as the four-fold elements of victimisation.

“Firstly, the respondent must have caused the applicant to undergo or experience something. Secondly, the applicant must have suffered some consequential detriment in any circumstances. Thirdly, that detriment must have occurred on one of the grounds set out in sub-paragraph (a) to (d) of Section 50(1). Fourthly, it must appear that the applicant did one of the things referred to in sub-paragraphs (a) to (d). Under sub-section (2) the respondent has a complete answer to the claim if it is shown the allegation of discrimination was not made in good faith.”

165 The Tribunal has consistently followed this approach and we intend to do so in this decision. (See for example Lal v President, Anti-Discrimination Board of New South Wales [2000] NSWADT 68 at 41; Crewdson v President, Anti-Discrimination Board of New South Wales [2000] NSWADT 60 at 45 and Sivananthan v Commissioner of Police, New South Police Service [2001] NSWADT 44.

166 Section 4A of the Act provides that in relation to complaints of unlawful discrimination where an act is done for one or more reasons and one of those reasons consists of unlawful discrimination, then that act is taken to be done for that reason. This section does not apply to an act of victimisation that is unlawful pursuant to s 50. (See Shaikh v Commissioner, NSW Fire Brigades at 78,986.)

167 What then is meant by the words "on the grounds of" in the context of s 50(1) of the Act? It is instructive to look at the relevant cases dealing with the meaning of this phrase in the context of discrimination on substantive grounds before the 1994 amendment to the Act, inserting s 4A, took effect. As noted by the NSW Law Reform Commission in its Review of the Anti-Discrimination Act 1997, (NSW) Report No 92 at [7.155-7.158] two approaches have been followed. The first approach requires a determination of whether the unlawful conduct constitutes a "significant factor" in the decision making process (see O' Callaghan v Loder [1984] EOC 92-023 at 75,499; Reddrop v Boeringer Ingleheim Pty Ltd [1984] EOC 92-031 at 75,569.) The second requires a determination of whether one of the real or operative grounds for doing the act was a proscribed ground of discrimination. (See the decision of Clarke JA in Waterhouse v Bell (1991) 25 NSWLR 99 at p 106.) For the purpose of this decision we adopt the test set out in Sivananthan v Commissioner of Police, NSW Police Service [2001] NSWADT 44 [at 43] “it is sufficient if the unlawful reason, that is the fact that the complainant had lodged complaints of … discrimination, had a real causative effect in the sense that but for its presence the act complained of would not have occurred”.

Points of Claim

168 The points of claim as they relate to victimisation suffer from similar defects as we have identified in points relating to age discrimination. The particulars set out in paragraph 5 of the Points of Claim can be collapsed into six alleged incidents of victimisation. First, the culling of Mr Kennedy from a short list of candidates; second, the September 1996 union meeting convened by Mrs Vlahos; third, the harassment of Mr Kennedy by members of the respondent’s management team after he lodged an internal complaint [May 1996]; fourth, the appointment of Mrs Vlahos as convenor of the February 1997 interview panel; fifth, the decision of the February 1997 panel; and sixth, the decision to dismiss Mr Kennedy.

169 For the purpose of this inquiry we examine each of these allegations in turn and ask, adopting the test advanced in Sivananthan v Commissioner of Police, New South Police Service [at 44], whether the respondent, his employees or agents, subjected Mr Kennedy to a detriment on the ground that he had done any of the things referred to in s 50(1)(a)-(d) of the Act. In respect of each of these allegations, we proceed on the basis that all relevant persons responsible for the decisions that are the subject of these allegations were aware Mr Kennedy had made complaints of age discrimination and victimisation both to the Board and the Department. It is common ground that s 50(2) is not relevant to a determination of these allegations.

Claim 11: Mr. Kennedy culled from short list (Points of Claim cl 5(b))

170 On 30 October 1996 Mr. Kennedy was advised that he had been culled from the list of employees to be interviewed for various positions as Grade 1/2 Award Enquiry Officers (Recruitment No 96/127). Mr. Kennedy protested against this decision and received support from team leader, Martha Graham, then Chair of the PSA DIR/DTEC Departmental Committee.

171 Warwick McDonald (then Director-General of the Department) stated in a letter dated 20 February 1998 to the President, that Mr. Kennedy was initially culled from the list of proposed interviewees as his written application “did not adequately address the criteria relating to his ability to work as part of his team; understanding of EEO, OH&S, Cultural Diversity and gender equity strategies and his commitment to provide a quality client service.” According to Mr. McDonald that decision was overturned following receipt of advice that “interviews should be granted to all applicants irrespective of whether they demonstrated [in their written application] the selection criteria”.

172 Mr Kennedy’s omission from the short list represented a detriment to him. There is no direct evidence that the reason for this decision was that he had made a complaint. Nor are we satisfied that it is open to us on the evidence available to draw that inference. This incident does not constitute victimisation within the meaning of the Act.

Claim 12: Union Meeting (Points of claim, par. 5(c))

Evidence

173 On 5 September 1996 Mr Kennedy emailed Mr McDonald requesting a meeting to discuss his 15 July complaint. The next day Mrs Vlahos emailed her colleagues at the AESC encouraging them to attend a union meeting [on 9 September] “[t]o discuss the lodgement of a complaint against allegations being made about the recent intake of permanent staff and various other matters. Union members are urged to attend to voice their opinions.” Mrs Vlahos said in evidence she called the meeting because “Mr Kennedy was harassing, he was always complaining. He was making life uncomfortable”.

174 In cross-examination, she conceded that the reason for calling the union meeting was part of a “total package” that included discussing the complaint made by Mr Kennedy about her daughter.

175 Mrs Vlahos denies that Mr McDonald or Mrs Riley played any role in organising the union meeting or that she spoke to either about her plan to convene the meeting. She said she did not report directly to Mr McDonald and had virtually no direct contact with him. Mrs Riley and Mr McDonald each deny being forewarned of Mrs Vlahos’ intentions. Mr McDonald denied telling Mrs Vlahos about the email sent to him by Mr Kennedy on 5 September.

Findings and conclusions

176 The clear meaning of Mrs Vlahos’ email was that the meeting was called to discuss allegations about the recent intake of permanent staff. In an environment where Mr Kennedy’s repeated complaints were an “open secret” in our view it is more probable than not that AESC staff would have known that the person referred to in the email was Mr Kennedy.

177 We have no clear evidence about what actually occurred at the meeting. Ms Vlahos could not tell us. The minutes could not be located. Mr Kennedy could only speculate. We are therefore not prepared to find as urged by Mr Veitch, that Mr Kennedy suffered a detriment because of anything said at that meeting. We are satisfied however that the communication of Mrs Vlahos’ message and its attendant publicity humiliated and embarrassed Mr Kennedy in front of his colleagues and constitutes a detriment for the purpose of s 50 of the Act.

178 Further, we are satisfied that Ms Vlahos caused Mr Kennedy to undergo this detriment because he had made allegations concerning contraventions of the Act. There may well have been, as contended, other reasons for calling the meeting. However, on balance, we are satisfied that but for Mr Kennedy’s complaints, Mrs Vlahos would not have acted as she did.

179 As Mrs Vlahos is not a respondent to these proceedings to establish liability, it must be established that the respondent, was liable for her conduct through the operation of s 53 of the Act. Section 53(1) provides that an act done by an employee is taken to have been done by their employer unless the employer did not expressly or by implication authorise their employee to do the act. Section 53(2) provides that an employer and their employee may be jointly and severally liable when both are subject to liability under the Act.

180 The operation of s 53(1) was considered in some detail in Shellharbour Golf Course v Wheeler [1999] NSWSC 224. In that decision at [33] Studdert J said: "... [a]s I construe s 53(1) once it was established that the misconduct occurred in the workplace environment and the offender was ostensibly at the time acting in the discharge of responsibilities as agent for his principal, what he did was deemed to be done by his principal, unless the conduct was unauthorised by the principal either expressly or by implication." In declining to adopt a narrow interpretation of the words "authorise" Studdert J said at [58]: “ [I]t seems to me that for the purposes of s53 the word "authorise" embraces "sanction, approve, countenance and permit". Permission may be inferred from inactivity and indifference where the person sought to be made liable is aware that some particular behaviour may occur."

181 Mr Veitch contends that that Mrs Vlahos acted with Mr McDonald’s permission and as such her conduct is caught by the operation of s 53(1). According to Mr Veitch the timing of Mrs Vlahos’ email is an “extraordinary coincidence” that can only be explained if Mrs Vlahos knew of Mr Kennedy’s email sent the day before.

182 Ms Anderson contends that first, the evidence does not support a finding that Mr McDonald told Mrs Vlahos about Mr Kennedy’s email; and second, while Mrs Vlahos organised the meeting during normal working hours at her usual place of work the evidence shows that she acted in her capacity as union member, not, as the respondent’s employee.

183 In our view to escape the consequences of s 53, it is insufficient to merely assert that the offending act was carried out in the employee’s role as a union member. While the proposition advanced by Ms Anderson will generally be correct, whether a person acted in their capacity as a union member or as an employee is a question of fact. At times, the line between the two roles may be blurred.

184 We therefore need to determine whether the respondent did authorise (or suggest that) Mrs Vlahos convene a union meeting to attempt to isolate Mr Kennedy in the workplace. Whether Mr McDonald told Mrs Vlahos about Mr Kennedy’s email and, if so, for what purpose is critical to that determination.

185 It is common ground that Mrs Vlahos knew Mr Kennedy formally “raised allegations about the recent intake of permanent staff”. She became aware of this sometime between 15 and 26 July.

186 Mr Veitch invites us to conclude that the only explanation for this “remarkable coincidence” is that Mrs Vlahos must have known of Mr Kennedy’s email. On Mr Veitch’s scenario, Mr Kennedy’s request for a meeting must have so inflamed Mr McDonald that he promptly got on the phone to a member of staff with whom he had little contact and told them about the request in the hope that retaliatory action would be taken. Yet, the contents of the email said to trigger this tip-off (which if believed would demonstrate an extraordinary lack of judgement on Mr McDonald’s part) are unremarkable. The email is merely a request to meet with Mr McDonald to discuss his complaint.

187 It is possible, of course, that Mrs Vlahos learnt of Mr Kennedy’s email from Mr McDonald or some other person whom Mr McDonald may have told. Equally, it is possible that Mrs Vlahos learnt of the email through someone Mr Kennedy had informed. Alternatively, it is possible that Mrs Vlahos had no knowledge of the email. The possibility that something might have occurred without something more, is not a proper evidentiary basis for drawing a conclusion. On the evidence before us we cannot be satisfied comfortably that Mr McDonald (or Mrs Riley) told Mrs Vlahos about the email. Accordingly, we do not find that the conduct of Mrs Vlahos was authorised by the respondent and in the absence of a proper respondent this allegation of victimisation is not made out.

Claim 13: Harassment of Mr Kennedy (Points of Claim 5(d))

188 Mr Kennedy claims that after he lodged his July 1996 complaint Mrs and Ms Vlahos had harassed him. Specifically he claims that in September 1996 Mrs Vlahos took him to task over what he described as an “innocuous matter”. This was improper, we understand Mr Kennedy to claim, as Mrs Vlahos was not his team leader at the time.

189 The evidence in respect of this allegation is limited. This allegation is broadly described in Mr Kennedy’s email to Mr McDonald dated 27 September 1996. It is not clear on the limited evidence before us what precisely was said by Mrs Vlahos and in what context.

190 In our view, the evidence before us is insufficient to make any determination in respect of this allegation.

Claim 14: Appointment of Mrs Vlahos to head interview panel (Points of Claim par. 5(e))

191 Before the February 1997 interviews Mr Kennedy made repeated complaints to the respondent’s management about the decision to appoint Mrs Vlahos as the head of the February interview panel

192 We understand Mr Veitch to argue that in light of the strained relationship, the decision to appoint Mrs Vlahos can only but be seen as a detriment.

193 We are not persuaded that Mrs Vlahos’ appointment to head the interview panel constitutes a loss, damage or injury. While the decision not to appoint a candidate may constitute a detriment we are not persuaded that the intervening step of appointing a particular person to an interview panel can be so characterised. The evidence is clear that Mr Kennedy held the strong and no doubt genuine view that Mrs Vlahos would not look favourably on his application. But what loss, damage or injury did he suffer from her appointment? It was, as we understand Mr Veitch to argue, the decision made by the panel that caused Mr Kennedy to suffer loss.

194 In case we are wrong on that point we proceed to consider whether the decision to appoint Mrs Vlahos was made on the ground that Mr Kennedy made complaint/s of age discrimination. The interview panel was appointed to interview 25 candidates. At the time, Mrs Vlahos was a team leader of the section. Mr McDonald told us in evidence that the Department wanted someone on the panel who was familiar with the work of the AESC. No doubt, there were others who could meet that requirement.

195 However we are not satisfied that the decision to appoint Mrs Vlahos ahead of any of her available colleagues was made on the ground that Mr Kennedy had lodged a complaint. Accordingly, this decision does not constitute an act of victimisation.

Claim 15: February 1997 Interview (Points of Claim par. 5(f) and 5(g)

196 Can it be said that the respondent, through its agents or employees, subjected Mr Kennedy to a detriment by not appointing him to the position for which he was interviewed in February 1997 on the ground that he had made complaints alleging contraventions of the Act?

197 In our view, the failure to appoint Mr Kennedy does constitute a “detriment”.

198 Both members of the panel knew Mr Kennedy had made complaints about members of the Department’s management team. Mrs Vlahos had detailed knowledge of these complaints as she was the subject of many of them.

199 Mere knowledge is not enough to establish that the panel reached the decision it did because Mr Kennedy had lodged complaints. Mr Kennedy must establish, on balance, that the panel did not recommend his appointment because of those complaints.

200 Both members of the panel steadfastly deny that the allegations made by Mr Kennedy played any role in their respective decisions. The stated reason for their decision was “Mr Kennedy did not have the level of knowledge, communication skills nor capacity to work in team environment”. As discussed, Mr Kennedy does not share this view of his abilities.

201 There is no direct evidence that Mr Kennedy’s complaint history played any role in the panel’s decision. Is there any indirect evidence that would allow us to draw such conclusion?

202 Mrs Vlahos claims she did not let her personal views intrude into her assessment. If this were so, she is a truly remarkable person. Mr Kennedy had made a succession of serious complaints about her and her daughter, Nicole. They included matters relevant to s 50(1) together with allegations of nepotism, and a defective management style. As she made clear in oral evidence, she felt worn down by Mr Kennedy “he was always complaining”. The evidence surrounding the union meeting shows she felt so strongly about Mr Kennedy in the later part of 1996 that she took the radical step of convening a union meeting to discuss her concerns.

203 In these circumstances, it is somewhat surprising that the Department appointed Mrs Vlahos to chair Mr Kennedy’s interview. Mr McDonald stated that he had formed the view after investigation that the complaints were unsubstantiated. However, it is difficult to see in such circumstances how “justice could seen to be done” at least as far as Mr Kennedy was concerned.

204 The mere fact that Mrs Vlahos had a clear motive to retaliate against Mr Kennedy does not of course establish that she did. It does however place great weight on the role played by the second member of the panel, Mr Hollis. As stated, we are not persuaded that the evidence establishes that Mr Kennedy’s age played any role in Mr Hollis’s decision.

205 It is possible that Mrs Vlahos may have attempted consciously or otherwise to influence Mr Hollis. However, Mr Hollis was not reliant on Mrs Vlahos to form an opinion about Mr Kennedy. He had the opportunity to assess for himself how Mr Kennedy performed at interview. The panel’s assessment was detailed and unequivocal: Mr Kennedy lacked the level of knowledge and communication skills required of Award Enquiry Officers. We see nothing on the evidence before us that Mr Hollis would have been prepared to sign off on assessment with which he disagreed (or had some reservations about) because of Mrs Vlahos’ influence or out of deference to her.

206 We deal finally with Mrs Riley’s report. As noted, we find the report was not irrelevant to the panel’s decision but we cannot say what weight it was given. It may have done nothing more than confirm the direct observations of panel members but in our view it is inconceivable that it played no role.

207 As noted, we are not persuaded that Mrs Riley’s report was contaminated by considerations of Mr Kennedy’s age. However, it is not conceivable that Mrs Riley would have remained unaffected by Mr Kennedy’s succession of allegations. Since February 1995 he had repeatedly accused her of age discrimination, poor management and nepotism. Staff shortages referred to in Mrs Riley’s report may go some way to explaining why Mr Kennedy’s poor performance was tolerated without comment by management but we are left with the uneasy feeling that her assessment may, in part at least, have been influenced by the fact that he was seen as a troublesome employee.

208 Despite these misgivings we cannot be comfortably satisfied that Mrs Riley would not have come to the conclusion she did but for the fact that Mr Kennedy had done any of the things referred to in s 50(1) of the Act. Even if we are wrong, the evidence in our view does not support a finding that the report itself played a substantive role in the panel’s decision.

209 We have carefully considered all the available evidence and find no basis for finding that the panel decided not to recommend Mr Kennedy because of the fact that he had done anything of the things referred to in s 50(1).

210 Accordingly, the panel’s decision not to appoint Mr Kennedy does not constitute an act of victimisation.

Claim 15: Dismissal of Mr Kennedy (par. 5(h) and 5(i))

211 On 26 February 1997 Mr Kennedy was called to a meeting with the Acting Director-General (Operations) Mr Gary Donnison. He was told his application for appointment as Award Enquiry Clerk 3/4 had been unsuccessful, his services were no longer required and he was instructed to leave the building. At that time, Mr Kennedy’s contract had a further two weeks to run. That contract was paid out. Mr Kennedy’s account, accepted by us was that he was permitted to return to his desk to collect his belongings only if he agreed to being accompanied an escort (which he did not).

212 In our view the termination of Mr Kennedy’s contract constitutes a loss. He was denied the opportunity to work to the end of his contract. While as pointed out for the respondent Mr Kennedy’s contract may have been paid out this does not preclude a finding that the termination constituted a loss. Loss or damage is not measured exclusively in economic terms. Mr Kennedy was employed on a fixed term contract. He had a legitimate expectation that he would work until the end of its term. The premature termination of his contract caused him embarrassment in the face of his work colleagues and had the potential to damage his reputation with future employers.

213 Importantly the manner in which the contract was terminated can only but be seen, as argued by Mr Kennedy, as harsh and insulting. He was given no notice of the decision and prevented from even collecting his belongings unless he agreed to be accompanied by an escort. It would have been common knowledge amongst his colleagues that he had been “shown the door”. We accept Mr Kennedy’s evidence that he was deeply humiliated and embarrassed on account of being terminated without notice from a job he had held for two and a half years.

214 Ms Anderson submits that that there is no evidence that the manner in which Mr Kennedy was terminated was different to the treatment afforded to any other employee in the same circumstances. That is correct. However a complainant seeking to rely on s 50 of the Act does not need to establish that their treatment was less favourable or different but rather that it constitutes a detriment. We are satisfied that the manner Mr Kennedy’s contract was terminated constitutes a detriment for the purpose of s 50 of the Act.

215 For Mr Kennedy’ complaint of victimisation to succeed he must establish on balance, applying the test set out in Sivananthan that the fact that he made complaints of age discrimination “had a real causative effect in the sense that but for its presence the act complained of [the dismissal] would nor have occurred”.

216 Why then was the decision taken to terminate Mr Kennedy’s contract two weeks before its end? While as a temporary Mr Kennedy had no rights of tenure, his contract prescribed the grounds on which his contract could be ended, namely if work and/or funds were no longer available or if his performance was considered unsatisfactory. There is no evidence that work or funds were no longer available. Was then Mr Kennedy ‘let go’ because of unsatisfactory performance? The respondent says that he was: the interview panel had determined that he was unsuitable for the regraded position of Award Enquiry Officer. That may explain why the respondent chose not to renew his contract. It does not, in our view, adequately answer why his contract, which had been renewed on fourteen subsequent occasions, was terminated without notice. If Mrs Riley’s evidence is to be accepted, Mr Kennedy’s performance problems were not new. According to her, Mr Kennedy’s performance was tolerated for over two and a half years because of staff shortages. There is no evidence before us that Mr Kennedy’s work performance had deteriorated immediately prior to his dismissal. Nor is there any evidence that the staff shortages to which Mrs Riley referred had been cured. The six positions not filled during the February 1997 interview round had not been filled at the time of Mr Kennedy’s dismissal.

217 Mr McDonald could not provide the Tribunal with any insight as to why Mr Kennedy’s was not permitted to work to the end of his contract. In his oral testimony he said that he thought that Mr Kennedy’s contract had not been renewed, and was apparently not aware that a decision had been made to terminate Mr Kennedy while his contract was still on foot.

218 There is no evidence before us to support a finding that summary dismissal is commonplace within the Public Sector. Indeed the little evidence before us on this point would suggest otherwise.

219 While working at the AESC Mr Kennedy made a range of allegations against the Department and its employees some, having nothing to do with his complaint of age discrimination. However the consistent and dominant them running throughout these complaints was that he had been treated unfairly on account of his age. The run up to his February 1997 interview indicates that he felt increasingly vulnerable and incessantly questioned and criticised the procedures employed by the Department in the February interview round. While poor performance may provide an innocent and plausible explanation as why Mr Kennedy’s contract was not renewed it does not in our view adequately answer why his contract was not allowed to run its full course. Having carefully examined all relevant evidence we conclude that had it not been for the numerous allegations of age discrimination and victimisation directed at the respondent and its employees, that the decision to summarily dismiss him would not have been taken.

220 Accordingly, we find that the dismissal of Mr Kennedy constitutes an act of victimisation pursuant to s 50 of the Act.

Relief

221 Mr Kennedy seeks orders under s 113 of the Act that the respondent pay him $40,000; make a public apology; provide him a positive work reference; implement an anti-discrimination policy (in relation to age); and arrange for its officers to undertake training in anti-discrimination legislation.

222 Section 113(1)(b)(i) of the Act permits the Tribunal to order a respondent to pay to the complainant damages not exceeding $40,000 by way of compensation for any loss or damage suffered by reason of the respondent's conduct.

Economic Loss

223 We are not satisfied that the respondent’s decision to terminate Mr Kennedy’s contract two weeks before its end resulted in any economic loss. Accordingly we make no orders on that account.

Non-economic Loss

224 Mr Kennedy also seeks an order for general damages for hurt, humiliation and injury to his feelings.

225 He gave evidence that he was deeply disturbed and distressed after leaving the respondent. He said he went to his doctor because he was upset and experienced problems sleeping. There is no medical evidence before us to support Mr Kennedy’s contention about his state of mind.

226 While we accept that Mr Kennedy was deeply distressed by the respondent’s decision to summarily dismiss him, it is evident that he was not only upset about this, but also with his failed application for appointment and the conduct of various Departmental officers over the two and half years prior to his termination. As found, with the exception of the dismissal, these matters do constitute a contravention of s 50 of the Act and accordingly we make no orders in respect of these matters.

Hall v Sheiban

"...damages for such matters as injury to feelings, distress, humiliation and the effect of the complainant's relationships with other people are not susceptible to mathematical calculation...To ignore such items of damage simply because of the impossibility of demonstrating the correctness of any particular figure would be to visit an injustice upon a complainant by failing to grant relief in a proven item of damage."

227 In this case our task is made even more difficult as we must determine what proportion of Mr Kennedy’s pain and suffering is attributable to his dismissal.

228 Having taken into account all relevant factors we believe that the appropriate sum for Mr Kennedy’s non-economic loss to be $5000.

229 We decline to make the other orders sought.

Costs

230 On 6 October 1999 an order was made by Judge Murrell in respect of the disputed summons (See Procedural Issue 3) that Mr Kennedy pay the respondent the sum of $300 payable at the conclusion of the proceedings. Accordingly we so order.

231 Both parties seek an order for costs in respect of the substantive proceedings. Section 114 of the Act provides that each party shall bear their own costs unless the Tribunal is of the opinion that there are circumstances that justify it making a costs order. We are not satisfied that the circumstances of this case warrant such order.

Orders

The respondent to pay the complainant within 21 days of the date of this decision the sum of $5,000 in relation to the complaint of victimisation.

The complainant to pay the respondent costs of $300 within 21 days of the date of the date of this decision.

CITATION:	Kennedy v Director-General, NSW Department of Industrial Relations [2002] NSWADT 186
DIVISION:	Equal Opportunity Division
PARTIES:	APPLICANT Patrick Kennedy RESPONDENT Director-General, NSW Department of Industrial Relations
FILE NUMBER:	102 of 1998
HEARING DATES:	31/08/00, 2-4/04/01, 24-25/10/01, 19/02/02
SUBMISSIONS CLOSED:	02/19/2002
DATE OF DECISION:	09/27/2002
BEFORE:	Britton A - Judicial Member; Alt M - Member; Farmer L - Member
APPLICATION:	Age Discrimination - In work - Victimisation
MATTER FOR DECISION:	Prncipal matter
LEGISLATION CITED:	Administrative Decisions Tribunal Act 1997 Anti-Discrimination Act 1977 Industrial Relations Act 1996 Public Sector Management (General) Regulation 1996 Public Sector Management Act 1994 Public Sector Management Act 1988
CASES CITED:	Commonwealth v Verwgyen (1990) 170 CLR 394 Anshun (1981) 147 CLR 589 Commissioner of Corrective Services v Aldridge [2000] NSWADTAP 5 Alone v State Housing Commission ("Homewest") (1992) EOC 92-392 Fenwick v Beveridge Building Products Pty Ltd (1986) EOC 92-147 Khanna v Ministry of Defence (1981) ICR Department of Health v Arumugam (1987) EOC 92-195; (1988) VR 319 Hafez v Warilla Women's Refuge Ltd, Clegg and McEwan [3 of 1993 & 40 of 1995]] NSWEOT Shaikh v Commissioner, NSW Fire Brigades (1996) EOC 92-808 Lal v President, Anti-Discrimination Board of New South Wales [2000] NSWADT 68 Crewdson v President, Anti Discrimination Board of New South Wales [2000] NSWADT 60 Sivananthan v Commissioner of Police, New South Wales Police Service [2001] NSWADT 44 O'Callaghan v Loder [1984] EOC 92-023 Reddrop v Boeringer Ingleheim Pty Ltd [1984] EOC 92-031 Waterhouse v Bell (1991) 25 NSWLR 99 Shellharbour Golf Course v Wheeler [1999] NSWSC 224 Hall v Sheiban (1985) ALR 503
REPRESENTATION:	APPLICANT P Veitch, barrister RESPONDENT T Anderson, barrister
ORDERS:	The complaint of age discrimination is dismissed.; The respondent to pay the complainant within 21 days of the date of this decision the sum of $5,000 in relation to the complaint of victimisation.; The complainant to pay the respondent costs of $300 within 21 days of the date of the date of this decision.