Raso v Commissioner for Fair Trading, Office of Fair Trading

[2008] NSWADT 51

CITATION:	Donohoe v The Trustees of the Christian Brothers [2008] NSWADT 51 This decision has been amended. Please see the end of the decision for a list of the amendments.
DIVISION:	Equal Opportunity Division
PARTIES:	APPLICANT Noel Donohoe RESPONDENT The Trustees of the Christian Brothers
FILE NUMBER:	081043
HEARING DATES:	1 July 2008 15 July 2008
SUBMISSIONS CLOSED:	15 July 2008
DATE OF DECISION:	11 August 2008
BEFORE:	Hennessy N - Magistrate (Deputy President)
MATTER FOR DECISION:	Preliminary Matter
LEGISLATION CITED:	Anti-Discrimination Act 1977 Administrative Decisions Tribunal Act 1997
CASES CITED:	Xu v Sydney West Area Health Service [2006] NSWADT 3
REPRESENTATION:	APPLICANT In person RESPONDENT Mr G McKay, solicitor
ORDERS:	Leave is granted for Mr Donohoe to proceed with the complaint of age discrimination.

Introduction

1 Mr Donohoe began working as a teacher at Christian Brothers High School Lewisham on 1 February 1977. From 1983 to 2006 he was the co-ordinator of Personal Development, Health and Physical Education (PDH/PE). On 11 August 2006, when he was 65 years of age, he resigned, effective from the end of the year. He was on long service leave until July 2007. On 31 July 2007 Mr Donohoe lodged a complaint of age discrimination with the President of the Anti-Discrimination Board alleging that he had been given no choice but to resign. After investigating the complaint, the President declined Mr Donohoe's complaints as lacking in substance. When that happens, section 96 of the Anti-Discrimination Act 1977 (AD Act) requires an applicant to obtain the Tribunal’s permission before the complaints can go ahead. Mr Donohoe represented himself at the hearing. The Trustees of the Christian Brothers were represented by Mr McKay.

Approach to leave applications

2 In Xu v Sydney West Area Health Service [2006] NSWADT 3, the Tribunal set out its approach to determining applications for leave under section 96. I adopt those principles in relation to this case, especially the points made at [17] and [18]:

The legislature has not given the Tribunal the task of conducting a merits review of the President’s decision. Consequently, it is not the Tribunal’s task to determine whether the President has made the correct and preferable decision in declining the complaint as lacking in substance. Nor has the legislature given applicants a right to appeal to the Tribunal against the legality of the President’s decision. It is not up to the Tribunal to determine whether or not the President has made an error of law. Nevertheless, as with appeals to the Court of Appeal and the Federal Court against interlocutory decisions, the legislature has given the Tribunal a gatekeeper role. That role is to ensure that a fair balance is struck between the interests of complainants in having their complaints heard and determined and the interests of respondents in not having to spend money defending unmeritorious claims. There is also a public interest in ensuring that unmeritorious complaints do not proceed to hearing. The legislature has placed the onus on the applicant to satisfy the Tribunal that the complaint should proceed notwithstanding the President’s decision that it lacks substance.

The discretion to have a complaint heard by the Tribunal when it has been declined as lacking in substance is unfettered and should not be constrained by rigid rules or criteria. Given the drafting history, the nature of the President’s decision and the decisions of superior courts in comparable circumstances, leave should be granted when the applicant is able to show a substantial reason for leave being granted. A substantial reason may include the fact that the complaint has reasonable prospects of success. To have reasonable prospects of success a complaint of direct discrimination must include some direct evidence, or evidence from which an inference can be drawn, linking the alleged treatment with the ground of discrimination.

3 In summary, Mr Donohoe needs to satisfy the Tribunal that there is a substantial reason for leave to be granted including that the complaint has reasonable prospects of success. In determining whether leave should be granted I have relied on the President’s Report and the oral and written submissions of each of the parties.

Period of complaint

4 An issue arose in the proceedings as to the period covered by the complaint. Section 89B(2)(b) of the AD Act gives the President a discretion to decline all or part of a complaint if it “occurred more than 12 months before the making of the complaint”. The complaint was made on 31 July 2007. The 12 month period should be calculated as being exclusive of that day, that is from 31 July 2006 to 30 July 2007: Interpretation Act 1987, s 36. In a letter dated 1 August 2007, the Anti-Discrimination Board wrote to Mr Donohoe saying, in part, “I have declined that part of your complaint that relates to conduct which you allege occurred prior to 30 July 2006 pursuant to s 89B(2)(b).” However, in the report to the Tribunal the period of complaint is described as 31 July 2006 to 31 July 2007. Whether the complaint covers the period of 12 months or 12 months and one day before the complaint may not make any difference in this case because the critical event on which Mr Donohoe is relying, occurred on 31 July 2006. The Trustees accepted that the events which occurred on that date come within the period of the complaint.

5 I note that in relation to a complaint about the calculation of Long Service Leave Mr Donohoe agreed that it was not calculated wrongly because of his age but because the school was inefficient and did not bother to check the calculation. Consequently I understand that Mr Donohoe is not pressing that part of his complaint.

President’s reasons for declining complaint

6 The reasons the President gave for declining Mr Donohoe’s complaints as lacking in substance were that:

The Board’s investigation has not disclosed any evidence that suggest or indicates the presence of the alleged ground of age in the Respondent’s conduct.

The Board’s investigation has not disclosed any evidence of a causal and proximate nexus between the ground of age and the alleged less favourable treatment.

7 During the period from about March 2006, the school was preparing for a Board of Studies (BOS) audit of the school. During terms 2 and 3 of 2006, Mr Taylor was the Acting Principal. He, and the Deputy Principal, Mr Joe Merlino, corresponded with Mr Donohoe and had several meetings with him about providing outstanding curriculum documentation. After a meeting on 14 June, Mr Taylor wrote to Mr Donohoe setting out some deadlines that he said had to be met. He concluded by writing:

We are now, Noel at a critical point in the long process. Some of the deadlines above, such as the posting 2005 scope and sequences, go back to December 2005. I flagged with you at our meeting the reality that if deadlines are not met by 31 July 2006, I may seek your resignation from the Head of Department position in order to give the school ongoing compliance and then sufficient time to achieve PDHPE Department readiness for the 2007 BOS inspection. I say this by way of being completely transparent with you and without prejudice; be assured of my ongoing support in assisting you to meet these stated curriculum goals.

8 On 4 July 2006 Mr Donohoe wrote a letter to Mr Taylor. He said in that letter that he actually wrote it in April 2006, during the holidays at the end of Term 1, but did not send it then. He said he was sending it now because of something Mr Taylor had since said to him. The letter said, in part:

. . .you have also questioned me regarding my age and how long I intend to stay at Lewisham. I’ve worked in 4 different State systems including NSW, WA and the UK and I’m sure no one will ask those sorts of questions in any of those systems. It is unprofessional to do so. I have sought the advice of several people connected with education since and each thinks that as well. You asked a flippant question and you received a flippant reply. Let’s leave that. If and when I go during your time here, you will be informed in the correct manner.

9 Mr Donohoe said that Mr Taylor was continually enquiring about his age and when he would be retiring from teaching. Mr Donohoe says he told Mr Taylor that he did not want to retire until 2 years after he took his long service leave which he hadn’t yet planned at that point. According to Mr Donohoe, Mr Taylor’s response was that he looked on it as good forward planning to inquire about his retirement plans. Mr Taylor denies that he was continually inquiring about Mr Donohoe’s age or when he would be retiring from teaching.

10 On 31 July 2006 Mr Donohoe, Mr Taylor and others met with Mr Donohoe. The school union representative, Mr Peetz attended as a support person for Mr Donohoe. Mr Donohoe says that Mr Taylor told him in that meeting that he would be sacked if he did not resign. He says he was given a week to decide Mr Donohoe says that he asked through Mr Peetz whether he could be stood down from his position as PDHPE co-ordinator but remain a teacher at the school. Mr Donohoe says that Mr Peetz told him that Mr Taylor declined that offer. Mr Donohoe said that he felt he did not have any other option but to resign because if he didn’t, he would be sacked.

11 In a letter dated 11 July 2006, Mr Donohoe wrote:

I wish to indicate that for personal reasons I will be resigning from the position of PDHPE coordinator and retiring from all other teaching positions at CBHSL at the conclusion of the school year.

12 The Trustee’s response to Mr Donohoe’s complaint was that Mr Donohoe’s employment was not terminated but rather he chose to resign. The Trustees say that he had difficulty regarding the administration of the faculty, assessment of students and ensuring the safety of students. Mr Taylor admits that he told Mr Donohoe that he may not be able to continue in his role as head of PDHPE unless his performance improved in the short term, but says that he did not tell Mr Donohoe that he could not continue as a teacher at the school.

Age discrimination complaint

13 If leave is granted, and this matter proceeds to hearing, the onus would be on Mr Donohoe to establish that the Trustees breached section 49ZYB(2). That provision states that:

It is unlawful for an employer to discriminate against an employee on the ground of age:

(a) in the terms or conditions of employment that are afforded to the employee, or

(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 Discrimination on the ground of age is defined in section 49ZYA. The relevant provision is section 49ZYA(1) which defines "direct" discrimination as follows:

(1) A person ("the perpetrator") discriminates against another person (the aggrieved person") on the ground of age if, on the ground of the aggrieved person’s age or the age 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 would treat a person who is not of that age or age group or who does not have such a relative or associate who is that age or age group, or

15 What has to be proved? The initial question that a Tribunal hearing this matter would have to determine is whether the conduct on 31 July 2006 amounts to a detriment within the meaning of that term in section 49ZYB(2)(c). It may be that being asked to consider standing down from the position as co-ordinator of PDHPE constitutes a detriment. If Mr Donohoe could prove that he was constructively dismissed from his position that would come within the meaning of a dismissal in s 49ZYB(2)(c).

16 The remaining issues would be whether or not the school treated Mr Donohoe less favourably from the way they treated or would have treated a younger person and whether one of the reasons for that treatment was Mr Donohoe’s age. The first issue is known as the differential treatment requirement and the second issue is known as the causation requirement: Commissioner of Corrective Services v Aldridge [2000] NSWADTAP 5.

17 Differential treatment requirement. The question is whether Mr Taylor would have asked Mr Donohoe to consider standing down from his position as co-ordinator and/or constructively dismissed him if he was a younger person. It is unlikely that there was an actual person in that situation, so the Tribunal would have to answer that question in relation to a hypothetical person. When the comparator is a hypothetical person, the Tribunal must first decide whether age was a reason for the treatment: Shamoon v Chief Constable of the Royal Ulster Constabulary [2003] 2 All ER 26; Dutt v Central Coast Area Health Service [2002] NSWADT 133.

18 Causation. The second element of discrimination is causation. The causation requirement is met as long as one of the reasons for the treatment (whether or not it is the dominant or substantial reason) is the person’s age: AD Act, s 4B. The causation requirement as set out by the majority in Purvis v New South Wales (2003) 217 CLR 92 at 163 when interpreting similar provisions in the Disability Discrimination Act 1992 (Cth), was expressed as follows:

. . .[w]hy was the aggrieved person treated as he or she was? If the aggrieved person was treated less favourably was it ‘because of’, ‘by reason of’, that person’s disability? Motive, purpose, effect may all bear on that question. But it would be a mistake to treat those words as substitutes for the statutory expression ‘because of’

19 The AD Act uses the words "on the ground of", rather than "because of" but no different meaning is intended. There are two main bases for Mr Donohoe’s allegation that the treatment on 31 July 2006 was on the ground of his age. The first is the comments and inquiries that he says Mr Taylor made about his age and when he was planning to retire. The second is that he says his performance and safety record with students was good so that those concerns could not have been the real reason for the treatment.

20 The Trustee’s response to those submissions is that the school’s concerns about Mr Donohoe’s performance and the safety issues are clearly documented and that Mr Taylor denies making any comments about Mr Donohoe’s age or retirement plans.

Conclusion.

21 It is not generally appropriate for the Tribunal to refuse leave where there is a serious question of fact to be determined or where a serious question of credit is involved: Spellson v George (1992) 26 NSWLR 666. It is not the Tribunal’s role at this stage of the proceedings to determine whether or not the complaint is substantiated. The Tribunal will need to make findings of fact about whether Mr Taylor made the comments about age and retirement plans, whether what was said on 31 July constitutes a detriment or a dismissal and whether performance issues and/or concerns about student safety were the real reasons for the way Mr Donohoe was treated. On the basis of those findings, the Tribunal will then have to form a view as to whether at least one of the reasons for the treatment was Mr Donohoe’s age. It cannot be said at this stage of the proceedings that the complaint has no reasonable prospects of success.

Order

Leave is granted for Mr Donohoe to proceed with the complaint of age discrimination.

02/09/2008 - Date error, should read as follows: " The complaint was made on 31 July 2007. The 12 month period should be calculated as being exclusive of that day, that is from 31 July 2006 to 30 July 2007: Interpreation Act 1987, s 36." - Paragraph(s) 4