Kulpa v Campbelltown City Council

[1999] NSWADT 30

CITATION:	Kulpa v Campbelltown City Council [1999] NSWADT 30
DIVISION:	Equal Opportunity
APPLICANT:	Kazimierz Kulpa
RESPONDENT:	Campbelltown City Council
FILE NUMBER:	85 of 1998
HEARING DATES:	12/10/1998
SUBMISSIONS CLOSED:	12/10/1998
DATE OF DECISION:	22 April 1999
BEFORE:	P King - Judicial Member S Clayton - Member K Edwards [Dissenting] - Member
PRIMARY LEGISLATION:	Anti-Discrimination Act 1977
APPLICATION:	Race Discrimination - Employment -
MATTER FOR DECISION:	Principal matter
REPRESENTATION:	Applicant: In person Respondent: S Winters of Counsel instructed by Marsdens
ORDERS:	1. Complaint has not been substantiated.

PER KING AND CLAYTON:
1 In this matter Mr Kulpa lodged a complaint under the Anti-Discrimination Act 1977 (NSW) with the Anti-Discrimination Board on 20 August 1996 alleging Discrimination on the ground of race in the area of his employment against the Campbelltown City Council. Following an investigation of the complaint by the Board and attempts to conciliate the matter, the complaint was referred to the Equal Opportunity Tribunal for enquiry pursuant to s94(1) of the Act. Pursuant to administrative arrangements now in place, the hearing has been conducted by the newly constituted Administrative Decisions Tribunal, Equal Opportunity Division.

2 Mr Kulpa was born in Poland near Krakow and in that country obtained a high level of qualification at school and in technical college after leaving school before emigrating to Australia. English is not the first language of Poles. In Poland he became qualified with the right to use the title of "building technician" with a specialisation in general building. After arriving in Australia the Committee on Overseas Professional Qualifications, expert evaluation panel, wrote to Mr Kulpa, having investigated his qualifications and achievements in Poland, on 3 June 1992, assessed his qualifications as comparable, in general academic terms, to a four year part time Australian Technical and Further Education (TAFE) certificate in building technology. He also qualified in academic terms as having reached a level of an Australian Higher School Certificate. Having arrived in Australia he worked in the construction and building maintenance industry in his area of skills as a skilled painter and later as a supervisor for over 16 years. It is acknowledged by the respondent that he is a competent tradesman and supervisor.

3 On 25 June 1996 the respondent advertised in the Macarthur Chronicle the position of maintenance supervisor, No. PB13, within the Council's Property Parks and Recreation Department. Primary duties noted were to implement and manage programmes and coordinate work so that the highest possible standard is achieved. Under the heading "Essential Critera" the following notation in the advertisement appeared

"• Must have Trade Certificate in Building or the equivalent.


• Must have experience in Building Maintenance.
• Must have proven supervisory experience.

Desirable Criteria :
• Basic computer skills
• Must be self-motivated and be able to motivate others"

There was then a reference to the salary and statement

"Further enquiries should be directed to Mr Wayne Millanonerr on telephone [phone]"

Mr Kulpa, along with 46 other persons, applied for the position with the respondent. He attached a resume to his letter of application. The letter from the Chairman of the Expert Panel of Technical Qualifications of the Australian Committee on Overseas Professional Qualifications dated 3 June 1982, part of which is referred to above, and two references, one of which is said to be from the last client described his work "of the highest standard and yet still carried out with great efficiency". The curriculum vitae of Mr Kulpa comprises a career summary referring to demonstrated accomplishments in the supervision and maintenance of building works, to his education, and to various certificates obtained in Poland and their Australian equivalents, professional experience including work with the Department of Housing and various organisations in Australia.

4 The procedure for selection of candidates for interview was conducted by the manager of operations in the Council's Property Parks and Recreation Department, Mr Allan Usher, assisted by the maintenance coordinator Mr Wayne Miller. Long term employees of the Council, Mr Usher and Mr Miller gave evidence and impressed the Tribunal as practical people. In deciding which of the 47 applicants were to be called in for interviews, Mr Usher obtained a culling sheet from the Human Resources Department on which he placed the 47 names and under the box "essential requirements" in three columns marked "trade certificate", "maintenance experience" and "supervision experience" he either ticked or crossed the various boxes. In the case of the two columns concerning experience, he would specify the number of years, if given by the applicants. The second box entitled "desirable requirements" were two columns, one "computer skills" and the other "motivation" were also marked accordingly. They then proceeded to examine each application and if the applicant had indicated a certain number of years experience in maintenance or supervision then that person would get a positive marking However, if they merely indicated they had experience but did not indicate the number of years they were given a cross. So far as the motivation column was concerned if they stated that they were self-motivated then they would get a tick, but if they said nothing about their motivation then they would get a cross. Mr Kulpa got ticks for the columns of trade certificate and computer skills, both of which are measurable items but got crosses for each of the columns maintenance experience and supervision experience and motivation. It is common ground that if those three boxes had been filled out with positive entries for Mr Kulpa, bearing in mind his years of experience, then he would in all likelihood have been given an interview. On the evidence before us, had he specified quantitatively his experience and motivation he would have received ticks in all boxes. It is a failure to grant him an interview about which he complains in this Inquiry.

5 Mr Dodd the Human Resources Manager of Council in 1996 gave evidence after a request was made to the respondent to make him and the records in his possession available, regarding the preparation of the culling sheet and the advertisement. These were matters not within the knowledge of either Mr Usher or Mr Miller. The culling sheet was used by them to make a quantitative assessment, although it was designed to permit a qualitative assessment. That involved determining whether an applicant had a sufficient number of years experience either in maintenance or supervision and if so the number of years of that experience would then be specified in the column beside the name of that applicant. If the applicant stated that he was self-motivated then the motivation column would be ticked. If nothing was said a cross would be placed. Mr Dodd also acknowledged that the advertisement placed by the Council directed attention to qualitative criteria rather than to quantitative criteria. That is to say, as a matter of plain English, apart from certificates and computer skills, it referred to the need for "experience in building maintenance" and "supervisory experience" and that the applicant must be "self-motivated". Yet it was apparent from the process that was adopted by Mr Usher and Mr Allan that a quantitative assessment was made.

6 This approach to the culling of applicants clearly gave rise to problems for Mr Kulpa. His case is that he understood the advertisement to refer to a requirement to state whether or not he had certain experience and in this regard he followed a formula used by applicants to the well known business Microsoft. He described his experience but he did not specify years. However, had the advertisement required him to specify the number of years experience and to say whether or not he was motivated he would clearly have filled each of those affirmatively. From his evidence he was clearly a motivated person. He had up to 16 years experience in maintenance and supervision in Australia. Because those factual matters were never placed before Mr Allan and Mr Usher, Mr Dodd acknowledged that Mr Kulpa was disadvantaged in that he understood the advertisement to require a statement of his experience in a qualitative sense and not the years of various jobs held in a quantitative sense. As a person of Polish origin, Mr Kulpa is of course a person of non-English speaking background, or as it was said, an NESB.

7 In these circumstances he complains of discrimination on the ground of race. Section 8(1) of the Anti Discrimination Act 1977 provides:

"It is unlawful for an employer to discriminate against a person on the ground of race:

(a) in the arrangements the employer makes for the purpose of determining who should be offered employment;

(b) in determining who should be offered employment ..."

Section 7(1) of the Act provides

"A person (‘the perpetrator)' discriminates against another person (‘the aggrieved person') on the ground of race if, on the ground of the aggrieved person's race or the race of a relative or associate of the aggrieved person, the perpetrator


(a) treats the aggrieved person less favourably than in the same circumstances, or in circumstances which are not materially different, the perpetrator treats or treat a person of a different race or who has such a relative or associate of a different race; or ...

(c) requires the aggrieved person to comply with the requirement or condition with which a substantially higher proportion of persons not of that race, or who have such a relative or associate not of that race, 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."

Section 4A of the Act provides

"If:


(a) an act is done for two or more reasons; and

(b) consists of unlawful discrimination under this Act against a person (whether or not it is the dominant or a substantial reason for doing the act)

then, for the purposes of this Act, the act is taken to be done for that reason."

8 The case put by Mr Kulpa was principally advanced on the basis of direct discrimination within s8 and s7(1)(a), but it was also put as the case was run before us on the alternative basis of indirect discrimination within s7(1)(c). We are not satisfied that a case has been substantiated of direct discrimination and we do not accept that either Mr Usher or Mr Miller rejected Mr Kulpa as an applicant for interview simply because he had a Polish surname. The fact that all persons with foreign surnames were excluded from the interview process does not, we think, give rise to an inference in the circumstances in this case that the decision made by Mr Usher and Mr Miller not to include Mr Kulpa could be considered to have been made because he was of Polish or foreign origin.

9. As to the case of indirect discrimination it was put by Ms Winters for the Council that Mr Kulpa's application also failed, for the reason that his application was defective in that it failed to address the essential criteria referred to in the advertisement. She argued that the word "experience" in the advertisement has a clear quantitative meaning and not a qualitative meaning. It was not Council's employment procedures that were defective, but Mr Kulpa's application. The reference to experience in the public notice inferred reference to a period of time and required the applicant to specify a number of years and not to qualitatively assess or specify the nature of his own experience. Further, as an NESB, Mr Kulpa's position was no different to that of anyone else. Without doubt Mr Usher and Mr Miller treated the word "experience" and indeed all of the qualitative requirements specified in the advertisement in a quantitative sense, but Mr Kulpa did not so understand them. His case was that he was disadvantaged because he was never in the race to obtain an interview by reason of his failure to address, due to his Polish origin, as an NESB, the unstated requirement of Mr Usher and Mr Miller that he specify the period of years of experience, and the fact he was self-motivated.

10. In these circumstances we consider that the following questions of fact require consideration:

(i) Was Mr Kulpa disadvantaged in not writing the number of years of his experience down and statement to the effect that he was self-motivated?
(ii) Do a substantially higher proportion of persons not of Polish origin comply or able to comply with the requirement that experience be quantitatively stated?
(iii) Was the requirement, implicit in the advertisement, that the applicant specify the number of years of experience and assert he was self-motivated, reasonable in circumstances where the advertisement also provided for a contact to explain any aspect of the advertisement or the job?
(iv) Was he disadvantaged on the ground of race?

11. Once these questions have been resolved it will then be appropriate to consider whether there has been a contravention of s8(1) and s7 of the Act.

12. In our view Mr Kulpa was disadvantaged in not writing the number of years of his experience down and including in his application a statement to the effect that he was self-motivated. Clearly according to the evidence, had he done so, he is more likely to have obtained an interview. Indeed, bearing in mind the years of experience which he had in the relevant areas of the Council's employment application, it would have been capricious in our view, on the evidence, to have excluded him from the interview. Further, we consider that Mr Kulpa was disadvantaged because of his non-English speaking background in failing to get an interview for the employment on offer by the Council. He was, as we have said above, never really in the race to obtain an interview because of his failure to address the unstated requirement in the arrangements the Council made for the purposes of determining who should be offered employment that the applicant clearly specify a period of years of experience and state affirmatively the fact that he is self-motivated. It may be assumed that Australians of Polish national origin born and raised in Poland have Polish as their first language and are persons for whom the speaking of English is more difficult than persons born in Australia speaking that language from birth. In that sense it may be concluded that the second question should be answered in the affirmative.

13. There is, however, a further requirement of indirect discrimination. The requirement that he quantify his experience and state his motivation rather than describing both must be one that is not reasonable in all the circumstances, for there to be a contravention of s7(1)(c) and s8 of the Act. In our view there is much to be said for the argument that it was not reasonable for the Council to include in the arrangements it made for the purposes of determining who should be offered employment an unstated requirement. The very failure to state the requirement of quantification carried with it the risk that persons unfamiliar with the job application process and the language adopted by the Council, especially of non-English speaking background, would be excluded from consideration. It is to the public benefit that the best possible candidates are considered. The Council has in these proceedings acknowledged Mr Kulpa's competence and experience, but has contended that it was merely unfortunate that Mr Kulpa was not considered for employment by it. However, the difficulty with the case of Mr Kulpa on this point is that the advertisement of the Council clearly states that if there are any queries with respect to the advertisement or the requirements they should be directed to a named officer of the Council and a telephone number is given. Such a statement in the advertisement goes a long way towards making what is unreasonable, reasonable. A further consideration, which we consider to be determinative, on this issue, is that it has not been shown that the quantitative qualification to the requirement in the advertisement, appearing in two places, to state the experience of the applicant was unreasonable in all the circumstances. There are many advertisements in similar form to that placed by the Council in the newspapers appearing frequently. Simply because these advertisements do not state that the reference to experience includes a requirement to state the years of experience does not, it seems to us on balance to be unreasonable. Indeed, a decisive consideration on this aspect of the case was the material provided by Mr Dodd in response to the request of the Tribunal being the job applications of the 47 applicants. Upon examination it appeared that all but two persons one of whose names appeared to be of Anglo-Saxon origin had specified the number of years of experience both of building maintenance and of supervision. This illustrates that it is extremely difficult to identify the unstated requirement as being unreasonable.

14. Turning, however, to the final question, that is whether the conduct of the Council can be said to have occurred "on the ground of the aggrieved person's race", we have come to the conclusion that assuming that the other requirements of indirect discrimination set forth in s7(1)(c) of the Act have been complied with then in the present case the requirement was not imposed on the ground of Mr Kulpa's race. We have come to this conclusion for two reasons. Firstly, there is no evidence before us that in Poland the word "experience" when used in advertisements of the same or similar kind is universally or frequently understood to mean a reference to the kind or nature of that experience, rather than as a reference to the number of years of experience. In other words, there is no basis for the conclusion that the requirement was imposed as a way of discriminating, albeit indirectly, against Mr Kulpa. Secondly, the definition of race in s4 of the Act arguably does not proscribe discrimination of a person on the ground that that person does not speak English as a first language. The definition of "race" in s4 includes "colour, nationality, descent and ethnic, ethno-religious or national origin". Those are words of specific description with respect to the particular meaning of the word race. The mere fact that a person does not speak the language most commonly found in Australia, namely the English language, does not of itself, we think, infer that that person has been discriminated on the ground of race. It is not, however, necessary for us to form a final conclusion on this issue bearing in mind the other findings we have made.

15. In all the circumstances we find that the complaint has not been substantiated.

PER EDWARDS:
16 I have read the decision of the majority and agree with it, up to, and including, Paragraph 12.

17 I do not agree that the unstated requirement, that applicants quantify their experience in years, was reasonable in the circumstances. Counsel for the Respondent argued that the word "experience" in the advertisement had a clear quantitative meaning and not a qualitative meaning. This assertion was not supported by evidence given by Mr Dodds (the Human Resource Manager of the Council at the relevant time) who said that the culling sheet was used to make a quantitative analysis, despite being designed to measure qualitative characteristics. Thus, on the respondent's evidence, those using the culling sheet were using it in a way in which it was not intended to be used. The Human Resource Manager indicated that this kind of quantitative analysis was contrary to Council policy, given the introduction of competency based assessment and training in local councils. The competency based system, introduced under the national training reform agenda, was introduced in no small part, to ensure broader access and greater equity outcomes (NSW State Training Profile, (NSW Office of the Board of Vocational Education and Training) Sydney, 1993 and ANTA Priorities 1994, (ANTA) Brisbane, 1993), by addressing a system of ad hoc and often inconsistent applications of quantitative assessment. Using time spent in a position as a measure of "experience", is a clearly gendered measure of the term (Poynton, C., "Naming Women's Workplace Skills - Linguistics and Power" in Probert, B and Wilson, B (Eds) Pink Collar Blues - Work, Gender and Technology, (Melbourne University Press) Melbourne, 1993 pp 92-94); likewise it should be seen as a measure expressing certain cultural constructions which correspond to race. This is particularly so in the area of local government where the shift towards competencies in place of number of years of experience appears to have encountered some opposition. That is, "experience" measured in time only (as it was in this case) required Mr Kulpa to comply with a requirement or condition with which a substantially higher proportion of persons not of that race, comply or are able to comply (as per Section 7(1) of the Act).

18 This requirement is not made reasonable by an invitation in the advertisement to applicants to telephone a named officer for further information. Mr Kulpa is still in the position of being unaware of the quantitative definition (culturally constructed and corresponding to race) being applied to the term "experience". This definition operates at the level of cultural assumption, in which case, Mr Kulpa and Council officers, would be unlikely to think to query what it meant, or elucidate what they thought it might mean. Further, it is just unlikely that any questions he might otherwise ask, during this process, would elicit a response which would clearly indicate that those in charge of the process were measuring "experience" in years. In addition, it would appear that officers may be breaching Council policy in stating that they were applying such a quantitative assessment, if Mr Kulpa had asked the question. Thus it is unlikely that they would have proffered such information.

19 The number and frequency of advertisements does not of itself prove discrimination though it may go to proving the frequency of a certain kind of treatment (discriminatory or otherwise). Similarly, the small number of persons who did not respond to the measure "experience" by listing the number of years in particular jobs, is just as indicative of indirect discrimination as not. Evidence regarding the Anglo-Saxon origin of names does not necessarily mean that they were form the dominant cultural group. Migrants have been known to change their names, or to have had them changed during the immigration process, to more a acceptable nomenclature. This can occur, for reasons as diverse as attempting to fit in with the dominant culture or marrying into it. For these reasons it is highly problematic to use names alone as a basis on which to adduce evidence.

20 On the above discussion, it is not necessary for a complainant to lead evidence that the process in their country of origin, pertaining to the dominant culture and relating to race, is different to that in Australia. However, if it were, Mr Kulpa had gained positions in equivalent authorities in Poland. That is, Mr Kulpa's success in gaining employment in an equivalent organisation in Poland, in addition to his evidence of his understanding of the word "experience" (i.e. not pertaining to years), is evidence of a different cultural context. If the relevant Polish authorities had the same requirements as Campbelltown in regard to the word "experience" while culling, Mr Kulpa would not have gained an interview and thus employment in Poland. He would have been unlikely to omit to include information which lead to success in another jurisdiction.

21 In regarding to the definition of "race" in s 4 of the Act, "ethnicity" means

1. pertaining to or peculiar to a population … 3.of or pertaining to members of the community who are migrants or the descendants of migrants whose native language is not English. 4.recognisable as coming from an identifiable culture (as defined in The Concise Macquarie Dictionary; 1982 at p 417) (my italics).

22 On the above definition, the fact "that a person does not speak the language most commonly found in Australia, namely the English language" may indeed ground discrimination on the ground of race. That is, the uses and definitions of language within the context of employment, for example, will be culturally constructed according to race, and as such potentially constitute structural discrimination, amounting to indirect discrimination under the Act, as it is in this case.

23 In all the circumstances I find that the complaint has been substantiated. I would make nominal orders for damages in favour of Mr Kulpa and an order requiring Campbelltown Council to make all requirements for applying for positions transparent and clearly understandable across all cultural groups in Australia.