Parr v The University of New England

[1999] NSWADT 46

CITATION:	Parr v The University of New England [1999] NSWADT 46
DIVISION:	Equal Opportunity
APPLICANT:	Bruce Parr
RESPONDENT:	The University of New England
FILE NUMBER:	83 of 1998
HEARING DATES:	04/12/1999; 04/13/1999; 06/04/1999
SUBMISSIONS CLOSED:	06/04/1999
DATE OF DECISION:	2 July 1999
BEFORE:	P King - Judicial Member L Nemeth de Bikal - Member L Taksa - Member
PRIMARY LEGISLATION:	Anti-Discrimination Act 1977
APPLICATION:	Homosexual Discrimination - Employment -
MATTER FOR DECISION:	Principal matter
REPRESENTATION:	Applicant: T Davie of counsel instructed by D M Wright & Associates Respondent: C Ronalds of counsel
ORDERS:	1. The Respondent to pay the sum of $40,000 to the Complainant

1 This is an inquiry into a complaint commenced in the Equal Opportunity Tribunal following a report from the President of the Anti-discrimination Board. The ground of complaint is that of homosexuality in respect of employment pursuant to Anti-discrimination Act 1977, s49ZH. Administrative arrangements having altered after receipt of the complaint, the inquiry was conducted by the Administrative Decisions Tribunal, Equal Opportunities Division. Following the hearing before us, in which there was extensive oral and documentary evidence tendered by both Mr Parr and the University of New England, we found the complaint substantiated and ordered the University to pay the sum of $40,000 to Mr Parr. We now provide our reasons for that determination.

2 Mr Parr lives at 9 Harbour Street, Mansfield in Queensland. At all material times he has been a homosexual. Between February and October 1995 Mr Parr was employed as an associate lecturer in the Department of Theatre Studies at the University. Mr Parr impressed the Tribunal as a witness of credit and we have accepted his evidence where it conflicts with that adduced by the Respondent. At that time the head of Department was Professor Kirnander. Professor Kirnander gave evidence before us and impressed us as a witness of integrity with a high level of commitment to both his Department and the discipline of theatre studies. He too is a homosexual. During the year 1995 it became known amongst the students and other members of the Department that Mr Parr, like Professor Kirnander was a homosexual. There occurred several unfortunate incidents in the Department at which adverse comments were made by other staff members and students about homosexuals culminating in an incident following the staging of a play in Armidale in which a letter to the editor of the Armidale Express was posted on the notice board of the Faculty. That letter was sent by a fellow member of the Department.

3 Following the placement of an advertisement for a permanent position the Department of Theatre Studies in 1995, several persons, including Mr Parr, applied for the position. On 25 October 1995 the Selection Committee which included Professor Kirnander and the Head of the Faculty Professor Maddox and other members of the Department a determination was made by the Committee recommending to the Vice-Chancellor that two persons were appointable. The second of those persons was Mr Parr the complainant. On 3 November 1995 Professor Maddox, the Chair of the Selection Committee, prepared a memorandum to the Vice-Chancellor, Professor Thom, in respect of the position. It recommended the two persons, including Mr Parr, for appointment and ordered them in priority with Mr Parr the second choice. For reasons that have not been explained, there was a different and lower salary level in respect of the second choice, although both recommended persons were to hold the same position, namely that of lecturer (tenurable) in the Department of Theatre Studies ("DTS").

4 On 10 November 1995 Professor Thom endorsed on a copy of the memorandum to him from Professor Maddox the following words:


"Approval to proceed with [name deleted] and in event he not accept to refer the recommendation of the Committee back to me for further consideration" (sic)

5 It is not contested that Mr Parr is anything other than an excellent candidate for the position and fulfilled all the formal requirements for it. A letter of offer in the usual form was sent to the first approved candidate on 14 November 1995.

6 On 16 November 1995 a letter was sent to Mr Parr from the University informing him that his application had been unsuccessful. Shortly after receipt of the offer the first choice candidate requested an extension of time to consider the offer of employment from the University and after further delay on 15 December 1995 advised the University he would not be accepting the offer. On 4 April 1995 Professor Thom gave permission to Professor Maddox for the position to be re-advertised. This in fact did not occur and it appears the position was not filled at that time.

7 Broadly speaking the factions within the Department of Theatre Studies in 1995 consisted of Mr Lawnt Thompson and Mr Ross Smith on one side and Professor Kirnander and Mr Parr on the other. Homosexuality was an important issue within the Department and friction arose tainted by that question. On more than one occasion Mr Thompson raised the issue culminating in the letter to which we have already referred. At the Selection Committee meetings there was significant disagreement between Professor Kirnander and the staff representative, Mr Ross Smith. The Committee concluded its deliberations and, as we have said, found Mr Parr appointable. The equal opportunity observer at the meeting, having regard to the heated discussion, noted that the situation was potential worrying in terms of the future management of the Department, whoever the successful candidate.

8 It was contended by the University that a complaint against Mr Parr by two female students was made to the Faculty and was brought to the attention of Professor Thom by Professor Maddox in 1995. It was suggested, in the evidence although not in submissions, that the existence of this complaint may have affected the decision adverse to Mr Parr. Although the equal opportunity officer, Ms Durur, at that time gave evidence before us she was unable to substantiate the nature of the complaint made against Mr Parr or identify anything in writing, contrary to the procedures laid down in the Grievance Mediation and Policy and Procedures Handbook. We note that the complaints were never progressed so that Mr Parr had no opportunity to defend himself. Nothing concrete was put to him in cross examination about them, nor were we enlightened by any evidence from the University as to the nature of those complaints. The importance of expeditiously and properly following complaints procedures in this context was addressed by the Equal Opportunities Tribunal in Shaikh v NSW Commissioner for Fire Brigades (1996) EOC 92-808.

9 The normal course of events in appointment procedures at the University, and elsewhere in the public service, is that where a first candidate declines an offer of employment then in the normal course of events an offer will be made to the second candidate, assuming the Selection Committee recommends that that person is appointable. Professor Thom in his evidence acknowledged that it was a matter of concern that Mr Parr had been sent a letter informing him that he had been unsuccessful in his application before the first choice candidate had accepted or declined the offer. No evidence was led by the University to explain satisfactorily why that had occurred. It was suggested at one stage this was a normal procedure, but this was unsubstantiated.

10 The sole reason advanced on behalf of the University for Mr Parr not being offered the position for which he applied was that of the adverse financial circumstances of the University. On the whole of the evidence we reject that explanation. Professor Thom was unable to be precise as to what those financial circumstances were and as to why they would have been a factor in denying Mr Parr the opportunity to take up the appointment in the event that the first choice rejected any offer, and in explaining why in April 1996 the University determined that the position could be re-advertised. No satisfactory financial data was laid before us to explain to us how the financial position had changed between September 1995 and the middle of 1996. Nor did the evidence satisfactorily disclose how the financial circumstances of the University in any realistic manner had influenced the decisions of Professor Maddox and Professor Thom to reject the recommendation of the Selection Committee in November 1995 and, after the first preferred candidate declined the tenurable opportunity in December 1995.

11 We were convinced by the argument of Mr Davie appearing on behalf of the complainant that the real and effective reason for the refusal to make the position available to Mr Parr was that he was a homosexual and that his appointment was perceived by Professors Maddox and Thom as being inappropriate because the appointment might possibly inflame existing tensions within the Department of Theatre Studies. Instead of satisfactorily addressing the issues raised by those tensions, the "problem" was, we find, resolved by rejecting Mr Parr as a possible candidate for appointment to the vacant position.

12 In our view the endorsement that Professor Thom made upon the memorandum to him from Professor Maddox on 3 November 1995 had nothing to do with the financial circumstances of the University. The decision had effectively been made to hire a lecturer when the advertisements were posted in the usual academic journals. Whether Mr Parr or the first choice accepted the offer, the financial circumstances were the same. If financial circumstances were truly operative in the minds of the decision makers, Professor Maddox and Professor Thom, towards the end of 1995, in our view they would in all likelihood not have granted the extension of time to the first choice candidate to accept the offer. They would simply have allowed the offer to lapse, or, as a matter of serious financial prudence, have withdrawn it as they were legally entitled to do. Inconsistent with the submission of the respondent, in our view, is the decision of Professor Thom in April 1996 to re-advertise the position. Also inconsistent with it is the evidence of Professor Kirnander that he was informed by the University that the vacant position should be filled with relief staff pending resolution of the problem of the vacancy. Finally, in the several explanations given by Professor Thom to Professor Kirnander in 1996 and in the discussions between Professor Thom and the members of the Selection Committee, the reason of financial constraints was not advanced as the decisive consideration, nor indeed as a real factor at all.

13 On a consideration of the whole of the evidence we reject the evidence of witnesses relied upon by the University that the reason for the refusal to make the offer of appointment to Mr Parr was the financial constraints upon the University at that time. We find that a substantial reason for the failure to offer employment to Mr Parr was the fact that he was a homosexual.

14 In these circumstances we find that, on the ground of Mr Parr's homosexuality, the University treated him less favourably than in the same circumstances it would have treated a person whom the University did not consider to be a homosexual and that this discrimination against Mr Parr occurred in determining who should be offered employment in the Department of Theatre Studies for position 481 advertised in 1995. In these circumstances we find that the complaint of discrimination on the ground of homosexuality in work pursuant to the Anti-discrimination Act 1977, s49ZH(1) has been substantiated.

15 Turning to the question of the orders which the Tribunal should make, we consider that in all the circumstances the appropriate order is that the University pay to Mr Parr the sum of $40,000 by way of compensation for the loss and damage suffered by reason of its conduct. We so find. The evidence before us was that the value of the tenurable position was not less than $45,000 per annum. Following the failure of Mr Parr to be appointed to the position he made several attempts to find alternative employment. He sought an administrative position in the theatre based on his previous experience but that application was unsuccessful. He obtained tutorial work at the University of Queensland with which he has had a long association and then applied for a permanent position but that too was unsuccessful. Bearing in mind his age he decided that his best prospects of obtaining work in his chosen career of theatre studies was to obtain a doctorate and he set about completing his doctoral thesis. The evidence suggests this was a responsible approach in his circumstances. We were informed that as at the date of the hearing he had completed his thesis and confidently expected to be awarded his doctorate. In assuming that he is successful and that he will thereafter be appointed to a tenurable position (as to which we have some doubt bearing in mind that his application for the University of Queensland was rejected at a time when it could have been anticipated his doctorate would have been awarded) we consider that the economic loss to Mr Parr should be assessed on the basis that it relates to a closed period, namely the period between October 1995 and the commencement of the academic year 2000. In the meantime Mr Parr has been living off his savings and a scholarship having an annual value of no more than $18,000. In these circumstances we find that his past economic loss consequential upon the discriminatory conduct of the University exceeds the jurisdictional limit of $40,000.

16 In addition, we consider that Mr Parr has been adversely affected in his personal and social life by the discriminatory conduct of the University in the present circumstances of this case. We would award a substantial verdict by way of general damages in his favour of $15,000.

17 In all the circumstances we find that the appropriate order for compensation is the sum of $40,000.

18 In conclusion we find the complaint substantiated and order the respondent to pay the complainant the sum of $40,000.