Pomplun v Shoalhaven City Council

[2010] NSWADT 113

CITATION:	Pomplun v Shoalhaven City Council [2010] NSWADT 113
DIVISION:	General Division
PARTIES:	APPLICANT William Pomplun RESPONDENT Shoalhaven City Council
FILE NUMBER:	101006
HEARING DATES:	13 April 2010
SUBMISSIONS CLOSED:	7 May 2010
DATE OF DECISION:	13 May 2010
BEFORE:	Hennessy N - Magistrate (Deputy President)
CATCHWORDS:	EQUAL OPPORTUNITY- complaint declined lacking in substance - application for leave to proceed
LEGISLATION CITED:	Anti-Discrimination Act, 1977 Administrative Decisions Tribunal Act 1997
CASES CITED:	Jones & Anor v Ekermawi [2009] NSWCA 388
REPRESENTATION:	APPLICANT In person RESPONDENT A Allegretto, solicitor
ORDERS:	Leave is refused for the following complaints to be the subject of proceedings before the Tribunal: a) the Applicant’s complaint of age discrimination against the Respondent; b) the Applicant’s complaint of sex discrimination against the Respondent; and c) the Applicant’s complaint of marital status discrimination against the Respondent.

REASONS FOR DECISION

Introduction

1 On 4 September 2008, the Shoalhaven City Council employed Mr Pomplun as a Visitor’s Centre Assistant on a permanent part-time basis. Within a few weeks of him commencing employment his manager, Ms Hatcher, raised various performance issues with him. On 28 October 2008, after attending a disciplinary meeting and receiving a formal warning, Mr Pomplun resigned. Almost 12 months later, on 15 September 2009, Mr Pomplun complained to the President of the Anti-Discrimination Board that he had been discriminated against in relation to the terms and conditions of his employment on the ground of his age, sex, and marital status. The President of the Board declined his complaints because they lacked substance. Mr Pomplun requested that his complaints be referred to the Tribunal. The Tribunal has a discretion to grant or not to grant leave for the complaints to proceed: Anti-Discrimination Act 1977 (AD Act, s 96). That discretion must be exercised in a fair and just manner. The grounds on which the President may decline a complaint, which are listed in s 92(1)(a), are relevant to the exercise of the Tribunal’s discretion under s 96 but are not determinative: Jones & Anor v Ekermawi [2009] NSWCA 388 at [60].

Background

2 On 24 September 2008, Ms Hatcher contacted the Human Resources Division of the Council to provide details of Mr Pomplun’s unacceptable work performance and conduct and to seek advice on how to resolve those issues. Two days later Ms Hatcher met with Mr Pomplun to discuss his work performance and to put measures in place to assist him to improve his performance and conduct. On 9 October a formal disciplinary interview took place. On 10 October Council issued Mr Pomplun with a formal warning. On 29 October Mr Pomplun failed to attend a pre-arranged meeting to discuss his performance and conduct. On the same day Mr Pomplun contacted the Council by email advising that he was making a complaint to the Board because Council was about to ‘sack a disabled person for complications to their disability that you (Council) has caused.’ On 29 October 2008 Mr Pomplun tendered his resignation. There was no evidence as to whether Mr Pomplun did in fact make a complaint of disability discrimination to the Board at that time.

Complaints

3 Age discrimination. Mr Pomplun was 48 years old when he started working for the Council. His complaint of age discrimination arises from a comment he says Ms Hatcher made in a meeting with him. He says that on 26 September Ms Hatcher reprimanded him for calling a customer, ‘mate’ and told him that he was too relaxed. Mr Pomplun said that, “It was insinuated that at my age I would not be able to change because this was my nature”. Accepting Mr Pomplun’s evidence at its highest, I have assumed for the purposes of these proceedings that Ms Hatcher did not just ‘insinuate’ that Mr Pomplun’s age would prevent him from changing, but that she actually said words to that effect.

4 In order to prove that he has been discriminated against on the ground of his age Mr Pomplun would have to prove that:

a) Council, through Ms Hatcher, has treated him less favourably than they treat or would treat a person who is not of his age or age group in the same circumstances or in circumstances which are not materially different;

b) one of the real or genuine reasons for that treatment is Mr Pomplun’s age; and

c) the treatment affects the terms and conditions of his employment or constitutes a detriment in relation to his employment: AD Act , s 49ZYA and 49ZYB(2).

5 Mr Pomplun did not identify the ‘treatment’ about which he was complaining. I have assumed that the treatment is saying words to the effect that his age would prevent him from being able to change the casual way in which he greets people. If that is the case, then it is arguable that Ms Hatcher would not have made that comment to a younger person and that one of the real or genuine reasons she made the comment was Mr Pomplun’s age. Mr Pomplun would still need to establish that the treatment affected his terms and conditions of employment or that it constitutes a ‘detriment’.

6 The question of whether so called ‘harassing’ behaviour can amount to unlawful discrimination was first addressed in New South Wales by Mathews DCJ in O'Callaghan v Loder [1983] 3 NSWLR 89. In that case her Honour found that sexual harassment in the workplace, which the employer knew or ought to have known about, could be regarded as a "detriment" or as a "term or condition" of employment. Such conduct constituted discrimination on the ground of sex because it was directed to women only and occurred because the intended recipient was a woman. On the basis of the reasoning in O'Callaghan v Loder and other leading decisions such as Hall v A & A Sheiban Pty Ltd (1989) 20 FCR 17, an employer could be held to have contravened sex discrimination laws by failing to respond appropriately to a work environment permeated by sexual harassment. The actual discrimination on the ground of sex for which the employer is liable is the employer's inadequate response to the work environment, which the female employee is forced to endure. These principles apply equally to harassment on other grounds including age.

7 The fact that the alleged comment was made on one occasion, in private, and that it was not said to have been made in a bullying or threatening way means that it is highly unlikely to constitute harassing behaviour sufficient to ‘permeate’ the work environment. Mr Pomplun appears to be under the impression that any one-off negative comment about his age constitutes discrimination and is unlawful. That is not the case. The conduct must meet each of the tests set out above. Because it is very unlikely that a Tribunal would find that it meets the third element listed above in [4], the complaint lacks substance and it would not be fair or just to grant leave for it to proceed.

8 Sex discrimination. Mr Pomplun says that he was the only male employed at his workplace. He says that there was another male employee but that he was not working at the same workplace as him at the time. The allegations constituting this complaint are that:

a) Mr Pomplun was reprimanded for failing to read the discussion board which set out a new way of using the eftpos machine whereas a female employee admitted that she had not read the discussion board and was not reprimanded.

b) Mr Pomplun was reprimanded for interrupting a female employee when she was serving a customer, however when he was serving a customer and one of the female employees interrupted him she was not reprimanded even though what she said was incorrect.

c) Mr Pomplun was reprimanded for answering the phone and ‘getting the name wrong’ when a female employee who answered the phone and could not remember the name of the person she had spoken to was not reprimanded.

9 In order to prove that he has been discriminated against on the ground of his sex Mr Pomplun would have to prove that:

a) Council, through its employees, has treated him less favourably than they treat or would treat a woman in the same circumstances or in circumstances which are not materially different;

b) one of the real or genuine reasons for that treatment is that Mr Pomplun is a man; and

c) the treatment affects the terms and conditions of his employment or constitutes a detriment in relation to his employment: AD Act , s 24 and s 25(2)

10 I have assumed in each case that the treatment about which Mr Pomplun is complaining is being reprimanded. If the circumstances in which Mr Pomplun was reprimanded were the same or not materially different from the circumstances in which his female co-workers were treated, it is arguable that Mr Pomplun could establish the first element. He would then have to establish that the real or genuine reason for that treatment was that he is a male. Council pointed out that Mr Pomplun was the only male applicant for the position and that he was successful. Ms Hatcher was on the interview panel, so it is highly unlikely that having hired him she would discriminate against him on the ground of his sex. We agree with that proposition. Furthermore, as all the other employees were female, the fact that he was treated differently from another employee, who happened to be female, is extremely weak evidence that the treatment was on the ground of his gender. Finally, in each case, Mr Pomplun was reprimanded for an apparently legitimate reason. That makes it unlikely that one of the real reasons was his gender. For those reasons Mr Pomplun’s complaint of sex discrimination lacks substance and it would not be fair or just to grant leave for it to proceed.

11 Marital status discrimination. The source of this complaint is a reference by Ms Hatcher in a record of the disciplinary interview on 26 September 2008, in which she said, under the heading, "[W]hat were the employees reasons for their behaviour":

Bill said that he thought he had been going well and expressed surprise that these issues had arisen. He said that due to his divorce and being left at the hospital as a baby by his mother he just didn't take too many things seriously. He also said that he wished to remain employed as it was nice to go to the bank and have money in his account.

12 Mr Pomplun denied telling Ms Hatcher that he was divorced or that he had been left at the hospital as a baby. He said he has never been married and that although he had mentioned that he had been adopted he did not tell Ms Hatcher in this interview that he had been left at the hospital as a baby.

13 In order to prove that he has been discriminated against on the ground of his marital status Mr Pomplun would have to prove that:

a) Council, through Ms Hatcher, has treated him less favourably than they treat or would treat a person of a different marital status in the same circumstances or in circumstances which are not materially different;

b) one of the real or genuine reasons for that treatment is Mr Pomplun’s marital status; and

c) the treatment affects the terms and conditions of his employment or constitutes a detriment in relation to his employment: AD Act , s 39 and s 40.

14 Mr Pomplun acknowledged that being adopted is not a ground of discrimination under the AD Act. Mr Pomplun did not identify the ‘treatment’ about which he was complaining. I have assumed that the treatment is the recording in a performance interview that one of the reasons Mr Pomplun gave for his conduct was that he has been divorced, when he did not tell Ms Hatcher that that was a reason for his behaviour and he has never been divorced. Again, I have accepted Mr Pomplun’s evidence at its highest for the purposes of these proceedings. Even so, there is no basis on which it can be inferred that Ms Hatcher would have behaved any differently if the employee had been of a different marital status. In other words, had Mr Pomplun been married or divorced, rather than single, there is no basis for inferring that she would not have recorded what she understood to be the reason the employee gave for behaving in a particular way. Nor can it be said that one of the reasons Ms Hatcher apparently incorrectly recorded that Mr Pomplun was divorced was his marital status. Mr Pomplun’s concern appears to be that Ms Hatcher incorrectly stated that he had been divorced. Even if that is correct, it does not constitute marital status discrimination. For those reasons Mr Pomplun’s complaint of marital status discrimination lacks substance and it would not be fair or just to grant leave for it to proceed.

Leave is refused for the following complaints to be the subject of proceedings before the Tribunal:

a) the Applicant’s complaint of age discrimination against the Respondent;

b) the Applicant’s complaint of sex discrimination against the Respondent; and

c) the Applicant’s complaint of marital status discrimination against the Respondent.