Shirley v Director-General, Department of Education and Training NSWADT (No. 2)

[2009] NSWADT 235

CITATION:	Shirley v Director-General, Department of Education and Training NSWADT (No. 2) [2009] NSWADT 235 This decision has been amended. Please see the end of the decision for a list of the amendments.
DIVISION:	Equal Opportunity Division
PARTIES:	APPLICANT Wayne Shirley RESPONDENT Director-General, Department of Education and Training
FILE NUMBER:	081085
HEARING DATES:	28 May 2009, 22 June 2009
SUBMISSIONS CLOSED:	29 June 2009
DATE OF DECISION:	15 September 2009
BEFORE:	Britton A - Deputy President; Schneeweiss J - Non-Judicial Member ; Nemeth de Bikal L - Non-Judicial Member
CATCHWORDS:	Complaint of age discrimination – employment
LEGISLATION CITED:	Administrative Decisions Tribunal Act 1997 Anti Discrimination Act 1977 Public Sector Employment and Management (General) Regulation 1996 Public Sector Employment and Management Act 2002 Government and Related Employees Appeal Tribunal Act 1980
CASES CITED:	Blair v Curran (1939) 62 CLR 464 Bonella & ors v Wollongong City Council [2001] NSWADT 194 Cachia v Isaacs (1985) 3 NSWLR 366 Kuligowski v Metrobus (2004) 220 CLR 363) Lambidis v Commissioner of Police (1995) 37 NSWLR 320 Commonwealth Bank v Human Rights and Equal Opportunity Commission (1997) 150 ALR 1 Husein v University of Western Sydney (No 2) [2009] NSWADT 86 Parkin v James (1905) 2 CLR 315 Purvis v New South Wales (2003) 217 CLR 92 Walker v State of New South Wales [2003] NSWADT 13
REPRESENTATION:	APPLICANT P Johnston, agent RESPONDENT D Ward, barrister
ORDERS:	1.The complaint of discrimination on the ground of age is dismissed.

REASONS FOR DECISION

1 In February 2007, TAFE teacher, Wayne Shirley applied to be promoted to the position of Head Teacher based at North Coast TAFE. He was unsuccessful. The stated reason for the decision not to appoint Mr Shirley was because he did not meet the advertised selection criterion, principally, the holding of an appropriate qualification, namely, a degree or diploma or equivalent, in information technology or a related discipline. Mr Shirley contends that he satisfied that criterion. While he concedes that he does not have a degree or diploma in information technology or a related discipline, he contends that he holds ‘the equivalent’ and that the criterion is satisfied on that basis.

2 Mr Shirley contends that the rejection of his application for the position of Head Teacher constitutes unlawful age discrimination. At the time he applied for the position he was in his late 40’s. In our view the complaint of age discrimination is misconceived.

3 In early 2007 the North Coast Institute of TAFE advertised the position of Head Teacher in Information Technology at the Kingscliff campus on the NSW North Coast. For convenience we set out in full the criterion central to Mr Shirley’s complaint, referred to in these reasons as ‘Selection Criterion 1’:

Appropriate technical or professional qualifications, and vocational and/or industrial experience to be able to teach in Web Development and Design and/or Systems Administration, and provide evidence of successful completion of an approved teacher education program or evidence of successful completion of an acceptable teaching qualification.

Note 2: An appropriate qualification would be a Degree or Diploma or equivalent in Information Technology or a related discipline

4 Pursuant to cl 8 of the Public Sector Employment and Management (General) Regulation 1996, a selection panel was appointed to recommend a person for appointment to the Director-General of TAFE. TAFE employee, Ms Michelle Kennedy, was appointed as Convenor of the Panel. The Panel received written applications from Mr Shirley and three other teachers.

5 According to Ms Kennedy, after considering Mr Shirley’s written application the Panel invited him to provide additional information as it believed the application contained insufficient evidence to demonstrate that he met Selection Criterion 1.

6 In answer to that invitation, Mr Shirley prepared a two-page document containing the following information about his qualifications:

Appropriate technical or professional qualifications
I hold a Bachelor of Teaching in Adult Vocational Education from UTS. I also hold a Certificate IV in Assessment and Workplace Training, a requirement for RTO supervisors of educational delivery.
I have attended many relevant staff developments and I.T. related training (listed in attached resume under “Professional Developments”)

7 Mr Shirley also provided the Panel with two letters received from TAFE in the late nineties. The first, dated 25 March 1999, from Ms Clair O’Connor, then Acting Head of Studies, Sydney Institute of Technology, notified Mr Shirley of details of an interview for classification as Teacher of Information Technology. The second, dated 5 January 2002, confirmed that Mr Shirley had been transferred to that position.

8 The Panel examined this information and concluded that it did not establish that Mr Shirley met Selection Criterion 1. Ms Kennedy sought clarification from Ms Agnes Vukovic of the Business, Arts and Information Technology Curriculum Centre about the application of Selection Criterion 1. In an email dated 23 February 2007, Ms Vukovic, advised:

Under the new Teacher/Head Teacher Designations developed in 2006 in consultation with Institutes and the Teachers Federation, all teachers and head teachers must have a Degree or Diploma in a relevant discipline.

9 A copy of the report prepared by Ms Kennedy on behalf of the Panel about the selection process was tendered in these proceedings. It stated that in the opinion of the Panel, Mr Shirley did not meet Selection Criterion 1, Selection Criterion 5 (demonstrated educational leadership), Selection Criterion 6 (demonstrated capacity to lead and develop professional staff) and Selection Criterion 8 (demonstrated interpersonal, negotiation and teamwork skills).

10 All candidates except Mr Shirley were interviewed. The Panel unanimously recommended the appointment of Ms Julie Baird. It also recommended that one candidate be placed on the eligibility list.

Did Mr Shirley meet Selection Criterion 1?

11 Mr Shirley’s contention that the Panel erred by determining that he did not meet Selection Criterion 1 is central to his complaint. To understand his argument it is necessary to sketch in the background to his appointment as a teacher within the faculty of information technology.

12 Background It is uncontroversial that in the late nineties, within the Sydney Institute of TAFE, there was an oversupply of teachers in the Faculty of Engineering and an undersupply in the Faculty of Information Technology. To address that imbalance the Institute offered engineering teachers the opportunity to transfer to Information Technology notwithstanding that they did not hold a degree or diploma in the latter. At that time the Selection Criterion 1 equivalent for a teacher designation was in the following terms:

Degree/Advanced Diploma or equivalent , which is accepted for graduate membership of a relevant professional institution. [emphasis added]

13 Mr Shirley, then a teacher in the Engineering Faculty, successfully applied to be transferred to the faculty of Information Technology. In a letter dated 7 July 1999, confirming that decision, Ms O’Connor, wrote:

As you have been granted Full Membership of the Australian Information Technology Association you have demonstrated that you meet Criteria 1: Degree/Advanced Diploma or equivalent, which is accepted for graduate membership of a relevant professional institution.

14 That together with some correspondence confirming various administrative matters relevant to Mr Shirley’s transfer is the sole documentary evidence about the circumstances surrounding the transfer. (See President’s report, pp 56 and 57.)

15 Mr Shirley contends that as a consequence of the decision made in 1999 to accept his membership of the Australian Information Technology Association as ‘equivalent to’ a Degree/Advanced Diploma in Information Technology, it is not open to TAFE to now contend that he does not meet Selection Criterion 1. He points out that that decision was not expressed to be limited in time. In support of that contention he points to a decision of the Government and Related Employees Appeal Tribunal, the Crown Employees (Teachers in TAFE and Related Employees) Salaries and Conditions Award 2009 and a number of documents relating to the ‘recognition of prior learning’ (RPL) principles.

16 GREAT appeal Mr Shirley lodged an appeal against the Panel’s decision to recommend Ms Baird for appointment, under the Government and Related Employees Appeal Tribunal Act 1980 (GREAT Act).

17 The appeal was disallowed. In short, GREAT decided that Mr Shirley had not established that he possessed ‘greater merit’ than Ms Baird (see Reasons for Decision, 6 July 2007 at [9]). GREAT observed:

8. …[Mr Shirley] possesses all the necessary qualifications, including a Bachelor in Teaching in Adult Vocational Education and a Certificate in Assessment and Workplace Training…Mr Shirley has met all the selection criteria and possesses all the required skills, qualifications knowledge and abilities needed in the role of Head Teacher…Although culled by the Selection Committee, the Tribunal accepts that Mr Shirley is also a meritorious candidate for the position of Head Teacher.

…

10 It appears Mr Shirley was principally culled by the Selection Committee for not meeting the current designated levels of teaching qualifications. As the Tribunal understands the matter, and as was confirmed by subsequent contact with the Department, there is an agreement between the Department and the Teachers’ Federation that teachers who possess qualifications that were sufficient for a teaching appointment when they first joined the Department remain eligible for such appointments (including Head Teacher positions where the designation is the same as
that for a Teacher position) even though they do not meet the current designated / prescribed level. It is therefore unfortunate that Mr Shirley appears to have not been granted an interview on that basis. Although the Tribunal’s jurisdiction in promotion appeal matters is concerned with determining whether an appellant has greater merit for appointment to the subject position and not in relation to potential defects in the selection process, the Tribunal thought it appropriate to note, for information purposes, what appears to be the Department-wide position on the issue of qualification levels.

18 The Award Clause 26 of the Crown Employees (Teachers in TAFE and Related Employees) Salaries and Conditions Award 2009 provides:

28. Qualifications for Appointment
28.1 Except where the employer determines that special circumstances exist in relation to a particular person
which warrant that person’s appointment with a lesser qualification or a shorter duration of vocational experience, the minimum qualifications for appointment to positions are as follows:
28.1.1 …
28.1.2 Teacher-appropriate technical or professional qualifications plus from two to five years, as appropriate, vocational and or industrial experience.

19 Mr Shirley contends that the following definitions contained in the Award are also relevant:

‘Equivalent’ when referring to qualifications means those qualifications deemed by the employer to be equivalent to specified qualifications.

Graduate means a person who has obtained a degree from a higher education institution or possesses qualifications determined by the employer to be equivalent to such a degree.

20 Recognition of Prior Learning (RPL) principles Mr Shirley tendered a number of documents published by the Australian Qualification Framework Advisory Board. They contain general information about RPL principles and the following definition of RPL ‘the assessment of previously unrecognised skills and knowledge an individual has achieved outside the formal educational and training system’.

21 Our conclusions We deal with Mr Shirley’s submissions in turn.

22 Estoppel argument Mr Shirley contends that as the Director-General did not lodge an appeal against the decision made by GREAT, he is estopped from challenging its finding — that is, that he met Selection Criterion 1. It will be recalled GREAT took the view an agreement existed between the Department and the Teachers Federation to the effect that ‘…teachers who possess qualifications that were sufficient for a teaching appointment when they first joined the Department remain eligible for such appointments (including Head Teacher positions where the designation is the same as that for a Teacher position) even though they do not meet the current designated prescribed level’ (see par [10] of GREAT’s Reasons for Decision ).

23 While not expressed in these terms, Mr Shirley is in effect asserting that there is an ‘issue estoppel’. Issue estoppel was described by Dixon J in Blair v Curran (1939) 62 CLR 464 at 531 in these terms:

A judicial determination directly involving an issue of fact or of law disposes once for all of the issue, so that it cannot afterwards be raised between the same parties or their privies.

24 (See also Parkin v James (1905) 2 CLR 315.)

25 GREAT is a competent tribunal and its decisions may give rise to an issue estoppel: Cachia v Isaacs (1985) 3 NSWLR 366. (See also Kuligowski v Metrobus (2004) 220 CLR 363). However not all findings made by GREAT are binding on the parties only those ‘…in respect of an issue which was directly, and not collaterally or incidentally involved in the proceedings’ per McHugh JA in Cachia v Isaacs at 386C cited with approval in Lambidis v Commissioner of Police (1995) 37 NSWLR 320 per Priestley JA at 333C. Accordingly we must decide — whether the finding that Mr Shirley met all selection criteria was — ‘an issue which was directly, and not collaterally or incidentally involved in the proceedings’. The key issue GREAT was required to address was whether Mr Shirley was ‘more entitled to be appointed to the vacant office’ than Ms Baird having regard to the factors listed in s 20 of the GREAT Act. GREAT found that he had not established ‘greater merit’. In our view the impugned finding was collateral or incidental to GREAT’s decision. This is apparent from the fact that the same decision would have been reached had the Tribunal taken the opposite view about the application of Selection Criterion 1. The Tribunal’s comments were obiter dicta (said by the way) and did not form part of the ratio decidendi of the Tribunal’s reasons for decision.

26 For these reasons we do not accept that the impugned finding raises an issue estoppel.

27 Binding on the ADT Mr Shirley also contends that it is not open for this Tribunal to depart from the impugned finding as it does not jurisdiction to determine the appeal.

28 Mr Shirley is correct that the Public Sector Employment and Management Act 2002 gives GREAT exclusive jurisdiction to determine the appeal brought against the appointment of Ms Baird (s 20 of the GREAT Act). He is also correct that this Tribunal does not have power to ‘overturn’ GREAT’s decision. Nonetheless this does not mean that this Tribunal must adopt the impugned finding.

29 As noted, the comment was obiter dicta and therefore not binding on this or any other court or tribunal. In any event, GREAT is not a superior court and therefore its decisions are not required to be followed by the Administrative Decisions Tribunal.

30 Award provisions The provisions of the Award relied on by Mr Shirley go no further than giving TAFE the power to appoint a person as a teacher who does not hold ‘appropriate technical or professional qualification’ if satisfied that ‘special circumstances exist’. They do not, as we understand Mr Shirley to suggest, mandate that TAFE do so.

31 RPL principles Mr Shirley has filed many documents which discuss RPL principles. He has not taken us to any part, which expressly addresses his situation. In our view they go no further than establishing that TAFE endorses those principles.

32 Our conclusions It may be that when transferred to the Faculty of Information Technology, Mr Shirley was assured that in any future appointment or promotion, his membership of the Australian Information Technology Association would be deemed equivalent to a degree or diploma in Information Technology. While possible that TAFE promised Mr Shirley that the 1999 deeming arrangement would be extended to any future appointment, the evidence does not support such a finding — Mr Shirley gave no evidence to that effect; the correspondence he tendered, makes no mention of any agreement or promise; there is no evidence of an agreement between the NSW Department of Education and the Teachers Federation other than the reference in GREAT’s Reasons for Decision. Furthermore, while the witnesses called by Mr Shirley, agreed that his qualifications in Engineering were accepted for the purpose of his transfer to the Faculty of Information Technology, none testified that they understood that an agreement, express or implied had been reached about future appointments.

33 For these reasons we are not satisfied that the evidence supports a finding that the Panel erred by determining that Mr Shirley did not meet Selection Criterion 1. In case we are wrong about this point, we will also consider whether, if Mr Shirley is correct and the Panel misconstrued Selection Criterion 1, his complaint of unlawful discrimination would be substantiated.

Does the decision not to appoint Mr Shirley constitute unlawful age discrimination?

34 Mr Shirley asserts that the decision not to appoint him to the position as Head Teacher and/or to cull his application, constitutes unlawful discrimination on the grounds of age (s 49ZYB of the Anti-Discrimination Act 1977 (the Act)).

35 Mr Shirley casts his complaint as both ‘direct’ and ‘indirect’ discrimination. We examine each claim in turn.

36 The test of so called ‘direct discrimination’ is set out in s 49ZYA(1) of the Act and provides:

(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, …

37 To succeed in his complaint, Mr Shirley must establish, on the balance of probabilities:

First, that he was treated less favourably than a person not of his age or age group in the same circumstances or circumstances which are not materially different to his circumstances (less favourable treatment); and

Second, that one of the reasons for any less favourable treatment was because of his age (causation).

37 Less favourable treatment An assessment of whether Mr Shirley was afforded less favourable treatment requires first, the identification of the relevant circumstances surrounding his treatment and, second, a comparison to be drawn between his treatment and that which was or would be afforded to a person in those or similar circumstances, who was not of his age or age group.

38 The majority in Purvis v New South Wales (2003) 217 CLR 92 (at 160, 161) described the approach to be taken, in this way:

In requiring a comparison between the treatment offered to a disabled person and the treatment that would be given to a person without the disability, s 5(1) [Disability Discrimination Act 1992 (Cth)] requires that the circumstances attending the treatment given (or to be given) to the disabled person must be identified. What must then be examined is what would have been done in those circumstances if the person concerned was not disabled…

The circumstances referred to in s 5(1) are all of the objective features which surround the actual or intended treatment of the disabled person by the person referred to in the provision as the “discriminator”. …

39 Mr Shirley did not identify the ‘relevant circumstances’ surrounding his treatment. In our view, they must include his lack of a relevant diploma or degree and TAFE’s earlier decision to treat his qualifications as ‘equivalent to’ a diploma or degree in Information Technology. His treatment therefore must be compared with a teacher not of his age or age group, who did not hold a degree or diploma in information technology, but whose membership of a professional association had previously been accepted by TAFE as equivalent for the purpose of satisfying Selection Criterion 1, or its then equivalent.

40 There is no evidence of an ‘actual’ teacher in the same or similar circumstances to Mr Shirley. Accordingly Mr Shirley’s treatment must be compared to that which would probably be afforded to a ‘hypothetical’ teacher and the question asked — was Mr Shirley’s treatment less favourable than that which would probably be afforded to a hypothetical teacher not of his age ― a teacher, say, 35 or 65 years — who does not hold a degree or diploma in the relevant discipline, but whose membership of a professional association had been accepted by TAFE as satisfying Selection Criterion 1, or its equivalent. It seems to us, presented with an applicant in those circumstances, the Panel would have treated him or her in exactly the same way that it treated Mr Shirley, that is, he or she would have been culled from the selection process.

41 Even if Mr Shirley is correct and the Panel misapplied or misconstrued Selection Criterion 1, the result would be the same — the hypothetical 35 or 65-year-old teacher would also have been culled from the selection process because of the Panel’s ‘mistaken’ application of Selection Criterion 1.

42 For these reasons we are not satisfied that Mr Shirley was subject to less favourable treatment.

43 ‘On the ground of’ Given our finding about less favourable treatment it is, strictly speaking, not necessary to consider whether one of the reasons the Panel did not recommend Mr Shirley for appointment /culled his application was ‘on the ground of’ his age. In the interests of completeness we will address this issue.

44 In Purvis v New South Wales, the majority (at 163), when interpreting similar provisions in the Disability Discrimination Act 1992 (Cth), expressed the test to be applied in this way:

[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’.

45 There is no direct evidence that age played any role in the Panel’s decision. Ms Kennedy’s unchallenged evidence is that she did not meet Mr Shirley until after the selection process was finalised and was unaware of his age prior to that meeting. On her account, the ages of the applicants were not discussed by the Panel and did not feature in its deliberations.

46 It was argued for Mr Shirley that it is improbable that the Panel members did not know his age — pointing out that all applicants were required to state their date of birth on the cover sheet of their application for the position. We agree.

47 It does not follow however that Mr Shirley’s age was one of the reasons the Panel members made the decision they did. It is noteworthy that of the four applicants for the position of Head Teacher, three were about the same age as Mr Shirley. Of those, two were successful in gaining an interview. This would suggest that Mr Shirley was not singled out because of his age.

48 From what is before us we can find no direct evidence or any evidence on which an inference could be drawn that age played any role in the Panel’s decision to cull/not appoint Mr Shirley.

49 Characteristics extension While not altogether clear, as we understand it, Mr Shirley also seeks to rely on the so-called ‘characteristics extension’. Contained in s 49ZYA(2) of the Act, it provides:

For the purposes of subsection (1) (a), something is done on the ground of a person’s age if it is done on the ground of the person’s age or age group, a characteristic that appertains generally to persons who are that age or age group or a characteristic that is generally imputed to persons who are of that age or age group.

50 While not put in these terms as we understand it Mr Shirely contends that it is a characteristic of people of his age group not to hold a relevant degree or diploma. He Shirley contends that ‘most’ TAFE teachers around his age ‘generally’ do not hold a degree or diploma in information technology because that qualification only became widely available in the late 90’s. He has provided no evidence to support that proposition. But even if established, it would not in our view constitute a characteristic that ‘appertains generally’, or is ‘generally imputed to’, the group to which Mr Shirley belongs, namely persons around 50 years of age. At best it would constitute a characteristic that ‘appertains generally’, or is ‘generally imputed to’ a sub-group within that group — NSW TAFE teachers in the Faculty of Information Technology. As noted by C Ronalds (in Discrimination Law and Practice, Sydney: Federation Press, 1998 at pp 28-29) and cited Walker v State of New South Wales [2003] NSWADT 13 at [45]:

These characteristics [ones that “appertain generally” or are “imputed” to the group which the complainant seeks to demonstrate membership] must be of a general or broad nature and not just ones which can be attributed to the complainant personally…It is not necessary to establish that the identified characteristic exists in every case but…it must be established that it generally exists or operates.

51 For these reasons we are not persuaded that the lack of a degree or diploma in Information Technology constitutes a characteristic that ‘appertains generally’, or is ‘generally imputed to’, persons around 50 years of age.

52 Accordingly it is not necessary for us to consider whether one of the grounds the Panel culled Mr Shirley’s application/failed to appoint him was ‘because of’ this purported characteristic.

53 Summary Cast as an allegation of direct discrimination, in our view Mr Shirley’s claim is misconceived and is therefore dismissed.

54 The test of so called ‘indirect discrimination’ is contained in s 49ZYA(1) of the Act:

(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:

(b) requires the aggrieved person to comply with a requirement or condition with which a substantially higher proportion of persons who are not of that age or age group, or who do not have such a relative or associate who is that age or age group, 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.

55 To succeed in his claim of ‘indirect discrimination’ Mr Shirley must establish that:

1. TAFE imposed a requirement or condition; and
2. He was unable to comply with that requirement or condition; and
3. A substantially higher proportion of persons not of his age or age group comply, or are able to comply, with the requirement or condition; and
4. The requirement or condition was not reasonable having regard to the circumstances of the case.

56 It is not in issue that the first and second elements are met. TAFE conceded that Selection Criterion 1 constitutes a ‘requirement or condition’ and that when Mr Shirley applied for the position, he could not comply. We refer to the subject requirement as the ‘Qualification requirement’.

57 Disproportionate impact In Bonella & ors v Wollongong City Council [2001] NSWADT 194 the Tribunal outlined the steps required to be undertaken to determine whether the offending ‘requirement or condition’ had a disproportionately adverse impact on persons with the relevant characteristic. Applied to the facts of this case, Mr Shirley must:

First, identify a pool or base group.
Second, identify the members within that group not of his age or age group, who comply or are able to comply with the qualification requirement [Group 1].
Third, identify the members of the base group of his age or age group, who comply or are able to comply with the qualification requirement [Group 2].
Finally, compare the proportion of members within Group 1 who comply or are able to comply with the qualification requirement with the proportion of members within Group 2 who comply or are able to comply with the qualification requirement.

58 Mr Shirley submits that it was ‘self evident’ that teachers of his age or in his age group could not comply with the qualification requirement as it was only in recent years that it became possible to obtain a degree or diploma in Information Technology. He claims that younger teachers are more able to comply.

59 On the first day of hearing it was pointed out to Mr Shirley that he had not identified the base group, or the sub-groups within it, and accordingly a comparison of compliance levels was not possible. We also explained that unless those groups were identified it would not be possible to undertake an assessment of whether the offending requirement had a disproportionate impact on Mr Shirley’s group (however defined). We went to considerable length to explain to Mr Shirley that it was critical to his claim that he address the four steps in Bonella set out above and provide evidence of the relevant groups. He was referred to the recent decision of Husein v University of Western Sydney (No 2) [2009] NSWADT 86 in which the applicant had failed to address these issues. We also reminded Mr Shirley that at an earlier case conference, DP Hennessey had pointed out the need to address these issues. (See Summary of Complaint, 17 September 2008 p 2.)

60 Mr Shirley was invited to provide the Tribunal with further evidence to address this evidentiary lacuna and the proceedings adjourned to allow him to do so. When they resumed after a three-month adjournment, no additional evidence had been filed that was relevant to this issue.

61 As TAFE pointed out, the only base group identified by the evidence are the four applicants who applied for the position of Head Teacher. Of this group, three were of Mr Shirley’s age. Of those, two could comply with the qualification requirement i.e. a 66 per cent compliance rate. One member of the base group was not of Mr Shirley’s age and could comply, i.e. there was a 100 per cent compliance rate. Based on that analysis it could be said that a substantially higher proportion of members not of Mr Shirley’s group can comply with the qualification requirement.

62 The task of identifying an appropriate base group is central to any claim of ‘indirect discrimination’. It must be carefully selected. In Commonwealth Bank v Human Rights and Equal Opportunity Commission (‘Finance Sector Union Case’) (1997) 150 ALR 1, Sackville J set out four general principles applicable to the selection of base groups:

* the base groups appropriate to particular cases will vary, according to the context;

* the selection of the base group should be calculated to reveal the significance, if any, of sex to compliance;

* the decision to select a particular base group involves a mixed question of fact and law; and

* the Court on an application for review does not make its own assessment of the base groups, but considers whether the group chosen is too broad or too narrow, by a process akin to determining whether relevant considerations were taken into account or relevant considerations were not taken into account.

63 In our view, the group constituted by the four teachers who applied for the disputed position does not represent an appropriate base group as it is too narrow to reveal the significance, if any, of age to compliance, to the Qualification requirement.

64 For that reason, even if that group was to be used, and we note Mr Shirley did not suggest that, it would not support a finding that the third element has been established. It is therefore unnecessary to consider the fourth element — that is, whether the qualification requirement was not reasonable having regard to the circumstances of the case.

65 For these reasons we are not satisfied that cast as ‘indirect’ age discrimination Mr Shirley’s complaint has been substantiated.

Qualifications of Convenor

66 In final submissions it was asserted by Mr Shirley that Ms Kennedy did not have the necessary qualifications to chair the Selection Panel. As we understand it, he believes that this renders the selection process void.

67 Even if Mr Shirley is correct, our ultimate finding would be unchanged. In respect of the claim of direct discrimination, it would have no bearing on either the assessment of causation or less favourable treatment. Equally, it has no relevance to the elements necessary to establish a claim of indirect discrimination.

Orders

1. The complaint of discrimination on the ground of age is dismissed.

30/09/2009 - Omission of word 'not' ,sentence to read 'This would not suggest that Mr Shirley was singled out because of his age'. - Paragraph(s) Paragraph 47