Lightning Bolt Co Pty Ltd v Skinner

SUPREME COURT OF QUEENSLAND

CITATION:

Lightning Bolt Co Pty Ltd v Skinner & Anor [2002] QSC 062

PARTIES:

LIGHTNING BOLT CO PTY LTD ACN 050 410 252

(appellant/respondent)

v

MICHAEL THOMAS BYATT SKINNER

(first respondent/complainant)

DAVID CLARENCE SMITH

(second respondent/complainant)

FILE NO/S:

Appeal No 6857 of 2001

DIVISION:

Trial Division

PROCEEDING:

Appeal

ORIGINATING COURT:

Anti-Discrimination Tribunal

DELIVERED ON:

22 March 2002

DELIVERED AT:

Brisbane

HEARING DATE:

9 November 2001

JUDGES:

Fryberg J

ORDER:

Appeal dismissed

CATCHWORDS:

DISCRIMINATION LAW – Anti-Discrimination Act 1991 (Qld) – Age discrimination – Dismissal from employment – Whether direct discrimination – Whether tribunal’s findings inconsistent – Whether a more probable and innocent explanation was available on the evidence.

Acts Interpretation Act 1954 (Qld), s 27B
Anti-Discrimination Act 1991, s 10(3), s 10(4), s 136, s 211, s 217(1)

Department of Health v Arumugam [1988] VR 319, referred to
Edwards v The Queen (1993) 178 CLR 193, referred to
State of Victoria v McKenna [1999] VSC 310, 27 August 1999, referred to

COUNSEL:

J E Murdoch SC for the appellant
A A J Horneman-Wren for the first and second respondents

SOLICITORS:

Dibbs Barker Gosling for the appellant
Steinitz & Associates for the first and second respondents

1. FRYBERG J: 

   The appellant employer, Lightning Bolt Co Pty Ltd (“Lightning Bolt”), was the unsuccessful respondent in the Anti-Discrimination Tribunal to a complaint lodged under s 136 of the Anti-Discrimination Act 1991 (“the Act”) by the present respondents, dismissed employees of Lightning Bolt. On 4 July 2000, the Tribunal, constituted by Mr L F Wyvill QC, found that Lightning Bolt had contravened the Act and made orders for compensation and costs against it. The Tribunal found that a substantial reason for the respondents’ dismissal was their age. Lightning Bolt now appeals against those orders.

   
   
   

1. Lightning Bolt carried on business manufacturing and selling a variety of fasteners such as nuts, bolts and screws. It employed the respondents (both of whom were skilled and experienced in fastenings stores) as storemen.  On 31 March 2000, after a period of employment of approximately three months, both men were dismissed. The reason for their dismissal, according to the Employment Separation Certificates signed by Lightning Bolt and provided to them, was “Insufficient work owing to a down turn in trade”.  On 10 April, Lightning Bolt employed two younger and inexperienced men, Mr Anderson and Mr La Macchia, to do the work previously done by the respondents.

1. In their points of claim filed in the Tribunal, the respondents contended that they had been dismissed because of the appellant’s desire to replace them with younger men.  Lightning Bolt’s contentions in its points of defence were (so far as is relevant):

“1.The applicant claims that his employment with the respondent was terminated because of his age. This is incorrect.

2.The applicant was terminated due to lack of work caused by a number of factors including a large customer of the respondent being placed into administration and ultimately into liquidation.”

1. The Tribunal delivered its reasons in writing, as required…