Talbot v Sperling Tourism and Investments Pty Ltd (formerly Mount 'N' Beach Safaris Pty Ltd) ABN 72 602 188 201

[2011] NSWADT 67

Administrative Decisions Tribunal

New South Wales

Medium Neutral Citation:

Talbot v Sperling Tourism & Investments Pty Ltd (formerly Mount 'N' Beach Safaris Pty Ltd) ABN 72 602 188 201 [2011] NSWADT 67

Hearing dates:

8 February 2010, 4 May 2010 and 8 July 2010

Decision date:

04 April 2011

Before:

E Grotte, Judicial Member
A Lowe, Non Judicial Member
B Weule, Non Judicial Member

Decision:

1.The complaint of age discrimination is substantiated.

2.The Tribunal directs the respondent to pay the amount of $25,323 to Mr Talbott within 28 days of this decision.

3.The Tribunal directs the respondent to provide a written apology to Mr Talbott in respect of the acts of discrimination within 28 days of this decision.

Catchwords:

Age Discrimination, Employment, Independent Contractor

Legislation Cited:

Anti Discrimination Act NSW 1977
Evidence Act 1995

Cases Cited:

Stevens -v- Brodribb Sawmilling Co (1986) 160 CLR 16
Hollis -v- Vabu Pty Ltd (2001) HCA 44
Connelly -v- Wells (1994) 10NSWCCR 396
Vacik Distributors -v- Kelly (1995) 12 NSWCCR 30
Commissioner of Police -v- Estate of Russell (2002) 55 NSWLR 232
Burns v Laws (EOD) [2008] NSWADTAP 32
Qantas Airways v Gama [2008] FCAFC 69
Chand v Rail Corporation of NSW (No 2) [2009] NSWADTAP 27
Hall -v- Sheiban (1985) ALR 503
Hall -v- Sheiban (1989) 20 FCR 217
Shamoon v Chief Constable of the Royal Ulster Constabulary [2003] 2 All ER 26
Dutt v Central Area Health Service [2002] NSWADT 133
Purvis v New South Wales [2003] HCA 62; (2003) 217 CLR 92
Commissioner of Corrective Services v Aldridge [2000] NSWADTAP 5
Waters -v- Public Transport Corporation (1991) 173 CLR 349

Category:

Principal judgment

Parties:

Talbot v Sperling Tourism & Investments Pty Ltd (formerly Mount 'N' Beach Safaris Pty Ltd) ABN 72 602 188 201

Representation:

Counsel
C Gleeson (Applicant)
A Britt (Respondent)
DLA Phillips Fox Solicitors (Applicant)
Ai Group Legal (Respondent)

File Number(s):

091018

reasons for decision

Background and the Claim

1. Robert Talbott is 75 years of age. He works as a tour guide operator and bus driver conducting tours in the metropolitan region of Sydney and the Blue Mountains. Mr Talbott is a director of a company trading in the name of Talbott Management Services Pty Ltd (TMS). It is a family company and he, his wife, and three sons, are its shareholders and directors.

1. Mr Talbott alleges that he was employed as a casual driver and tour guide operator for Mount 'N' Beach Safaris Pty Ltd (MBS), now identified as Sperling Tourism and Investments Pty Ltd (the respondent), from about March 2005 to January 2008. Mr Talbott performed tour bus-driving services for the respondent.

1. Mr Talbott claims that he was an employee of MBS. He invoiced MBS for the services he performed for MBS via his company, TMS. He claims however, that at all times, the respondent, MBS, dealt with him in his personal capacity and not through his company.

1. Until July 2007 Mr Talbott performed the tour bus-driving services for the respondent on a seasonal basis between September and May, conducting full-day tours between Sydney and the Blue Mountains, three days a week, Mondays, Wednesdays and Fridays.

1. Mr Talbott claims that he was dismissed from his employment on 18 July 2007, was then re-employed on a limited basis after August 2007, and was finally dismissed on 22 January 2008.

1. Mr Talbott alleges that his treatment between 18 July 2007 and 22 January 2008 amounted to discrimination on the ground of his age. He alleges that he was dismissed from his usual employment as a full-day coach driver on 18 July 2007 for the stated reason that he was getting old and that it was time for him to retire, contrary to the provisions of sections 49ZYA (1)(a) and 49ZYB(2)(c) of the Anti Discrimination Act 1977 (ADA). Alternatively, he alleges that he was discriminated against on the ground of age contrary to section 49ZYD(b) of the ADA in that he, as a contract worker, was not allowed to work or continue to work because of his age.

1. Mr Talbott alleges that he was effectively demoted and was denied the benefit of working full-day tours including the additional remuneration involved in working full-day tours in the period after 18 July 2007, by reason of his age, contrary to the provisions of sections 49ZYA(1)(a), 49ZYB(2)(b), (c) or alternatively, section 49ZYD of the ADA.

1. Mr Talbott also alleges that he was dismissed from his employment on 22 January 2008 for reasons including his age, contrary to the provisions of sections 49ZYA(1)(a) and 49ZYB(2)(c) or, alternatively, section 49ZYD(b) of the ADA.

1. On 16 April 2007 Mr Talbott's bus was involved in an accident on Macquarie Street in the city. The bus rolled down the hill and struck another vehicle. On 18 July 2007 the principal of MBS, Mr Sperling, wrote a letter to Mr Talbott, advising him that he would not be offered any more shifts for MBS in the forthcoming season. The letter stated as follows, in part:

Robert, your work with us over the past several years has been highly valued. Nonetheless, driving/guiding up to 12 hour shifts to/from the Blue Mountains in all weathers and in a bus full of sometimes difficult people along with city pick-ups and drop-offs in heavy traffic is not at all easy. Furthermore keeping to scheduled pick-up times and simply physically climbing into-out of 4WD buses is not easy. In good faith and recognising you are now aged in your early 70's, what I suggest is that it's time to step back from front line tour driver/guide work.

1. Following receipt of this letter, Mr Talbott asked his wife to write to Mr Sperling to organise a meeting with Mr Sperling in order to discuss the letter and to discuss what Mr Talbott considered to be a dismissal. He and Mr Sperling met on 20 August 2007.

1. Mr Talbott states that following the meeting, he was offered further work on a reduced basis, being half-day tours in the city. In oral evidence to the Tribunal Mr Sperling said that Mr Talbott was offered city tours because he believed that Mr Talbott was more capable of handling smaller buses, thereby avoiding incidents and that the shorter city tours would also be easier to handle. There would be no climbing and no peak hour traffic. Mr Sperling's evidence was that he gave Mr Talbott as much of this type of work as possible and he was satisfied with Mr Talbott's performance on the city tours.

1. On 16 January 2008 Mr Talbott was involved in a second accident at Bondi, when he reversed into a vehicle while attempting to avoid being hit by a vehicle in front of him. On 22 January 2008 Mr Talbott claims that Mr Sperling wrote to Mr Talbott dismissing him for the final time.

Issue 1 - Was there a contractual relationship between Mr Talbott and MBS? And what was the nature of the contractual relationship, if any, between Mr Talbott and MBS? Is Mr Talbott an employee or an independent contractor?

1. Section 49ZYB(2) of the ADA provides as follows:

(2) 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.

1. Section 4 of the ADA defines "employment" for the purposes of the ADA as including work performed under a contract for services.

1. To prove discrimination pursuant to section 49ZYB(2), the applicant needs to establish first of all, an employment relationship or a contract for services between himself and MBS.

1. The respondent submitted that, although "employment" is defined by section 4 of the ADA as including work under a contract for services, "employee" and "employer" are not defined by the ADA.

1. The respondent submitted that the relevant provisions of the ADA do not apply to its conduct, because MBS was not in a legal relationship with Mr Talbott. Rather, it was in a legal relationship with TMS.

1. It was submitted that there was no contract of employment or contract for services between Mr Talbott and Mr Sperling. It was submitted that there was no offer made to Mr Talbott personally, or acceptance by him personally, and that there was no intention by the respondent to engage Mr Talbott personally. The respondent submitted that the evidence establishes that Mr Talbott was engaged and paid by TMS. The service that he rendered TMS was enabling it to carry on its business. It was submitted that, for this, TMS paid him.

1. It was submitted by the respondent that the common law recognises that an individual might at any one time, be an employee of two different employers and that employment is transferred between the employers. It submitted however, that:

• a contract of employment cannot be transferred from one employer to another without the employee's consent and the second employer's consent;
• this consent cannot be raised by the operation of law, but only by the real consent of the persons concerned, whether it is express or implied; and
• there is no evidence of any such consent, either express or implied from the respondent to agree to a change in employment from TMS to itself.

1. It was also submitted on behalf of the respondent that a contract may be implied but there must be evidence to support such an implication. In other words, there must be evidence that the parties intended to create contractual relations and this depends on what the parties have said or done. It was submitted that the evidence shows that the respondent did not intend to employ Mr Talbott, but intended that he be employed by another.

1. In the alternative, the respondent submitted that, if the Tribunal found that there was a contract between Mr Talbott and the respondent, it did not amount to an employment contract. It was submitted that a "prominent factor in determining the nature of the relationship between a person who engages another to perform work and the person so engaged is the degree of control which the former person exercises over the latter", as stated by the High Court in Stevens -v- Brodribb Sawmilling Company Pty Ltd (1986) 160 CLR 16 ( Stevens ). The Tribunal notes that in Stevens, the Court also held however that the existence of control is not the sole criterion by which to gauge whether a relationship is one of employment, but merely one of the indicia to be considered when determining the question. It was submitted on behalf of the respondent that other relevant factors included the mode of remuneration, the provision and maintenance of equipment, the obligation to work, the hours of work, the provision of holidays, the deduction of income tax and the delegation of work by the putative employee, as well as how the parties to the contract characterised their relationship and how the relationship worked in practice. It was also submitted that another factor that works against an employment relationship, is whether the party is incorporated or has a right to incorporate himself or herself under the contract.

1. It was submitted on behalf of the respondent that the Tribunal should not be too hasty to characterise as employees those workers whose remuneration under the present-day tax law is received free of tax and subject to tax in their hands under the PAYG system. It was further submitted that the introduction in July 2000 of the new legislative regime may have strengthened the case for such workers to be characterised as independent contractors. By obtaining an Australian Business Number (ABN) and taking over from the employer the responsibility of paying GST, such workers would have further enhanced the range of penalties that may be imposed, both on their employer and on themselves, if they were subsequently found to be employees.

1. It was submitted on behalf of the respondent that Mr Talbott and MBS have characterised their relationship as contractors and that Mr Talbott is employed by TMS. Mr Talbott is running his own business and MBS did not have the exclusive services of Mr Talbott. It was submitted that Mr Talbott worked across a range of industries and a variety of employers in the bus-driving industry. It was submitted that he had no obligation to work and that he was not provided holidays. TMS was paid without any deduction for income tax, TMS provided invoices for the work performed by Mr Talbott, and TMS charged the respondent GST, which was paid by the respondent.

1. The respondent conceded however, that the evidence establishes that Mr Talbott is a "contract worker" as defined by section 4 of the ADA. The employer is TMS and the respondent is a "principal" for the purposes of section 49ZYD of the ADA.

1. The applicant's primary submission is that he is an employee of MBS for the purposes of section 49ZYB of the ADA and that the relationship is between himself personally, and MBS.

1. The applicant submitted that the definition of employment, as set out in section 4 of the ADA, imports the common law distinction between employees and independent contractors, with the legislative intention that both relationships be caught by the section. It was submitted that in special statutory contexts, it may be possible for a worker to have different employers in different contexts, so that an employer for the purposes of payment of salary and wages, payroll tax and income tax, may differ from an employer for public liability and workers compensation. It was also submitted that, in another context, the Court of Appeal has held that the employment definitions in the Act should not be given a narrow construction which is likely to defeat the purposes of the ADA. In Commissioner of Police -v- Estate of Russell (2002) 55 NSWLR 232 ( Russell ), a case concerned with section 53 of the ADA, Spigelman CJ made the following observations at 248-250:

"The word "employee" has a legal meaning in the sense of a person who has a contract of employment with another. However, the word is capable of being used in a more general sense to encompass a person who is paid for performing work on a regular basis at the request, and at the direction, of another. In particular statutes the word "employee" will often be construed to extend to an independent contractor, even in the absence of an express statutory extension of a character contained in the Anti-Discrimination Act . The issue turns on the proper construction of the word in its context, in which process the scope and purpose of the statute under consideration plays an important part.

In the statute presently under consideration, the word "employee" appears in each of the provisions of the Act rendering it "unlawful for an employer to discriminate against an employee" on the relevant ground, in the present case, race. For beneficial legislation, such as the Anti-Discrimination Act , a liberal interpretation is appropriate. This is reinforced by the purposive approach required by s 33 of the Interpretation Act 1987 (see IW -v- City of Perth (1997) 191 CLR esp at 11-12, 18, 22, 23, 58).

Nothing in the scope and purpose of the Act suggests that it should be limited to persons subject to contracts of employment, even with the specific statutory extension to include under a contract of services. Insofar as persons do "work" in a context closely analogous to "employment", the purpose of the legislation would be better served by extending the protection of the Act to such a relationship. There must be some element of regularity and permanence in the relationship, and also an element of direction and control of work, for it to fall within an extended sense of the word "employment". But where such context exists, the Court should be slow to hold that the Act has no application.

There are a number of textual indications that the word "employee" should not be read in a narrow sense. The word appears most frequently in the context of references to "work". Accordingly, the Division in each of the Parts which refer to discrimination in employment is headed "Discrimination in work". The definition of employment is expressed to include "work under a contract for services". Similarly the definition of employment agency refers, disjunctively, to the conduct of "Supplying employers with workers or employers" in the context of "finding work or employment for others".

In my opinion the purpose served by the various sections in which the word "employee" appears, including s 53, is such that the word "employee" should not be confined to situations in which there is a contract of employment, but extend to the situation of a police officer."

1. It was submitted therefore, on behalf of Mr Talbott, that it is against the policy and purpose of the ADA to favour a construction that would permit the respondent to raise the corporate veil in order to avoid its obligations to those who perform work for it. It was submitted that the Tribunal should approach the relationship between Mr Talbott and MBS as a matter of substance rather than form, and that when the circumstances of the relationship between the parties are examined, it is clear that the employment test set down in Stevens is satisfied, in that the totality of the relationship suggests a relationship of employment with Mr Talbott, rather than a relationship of engagement with his trading company.

1. It is not disputed that Mr Talbott incorporated a trading company known as Talbott Management Services Pty Ltd (TMS) on 15 June 1971. It was ascribed an Australian Business Number by the Australian Taxation Office. Mr Talbott was a director and shareholder along with his wife and children. TMS carries on various business activities, which includes bus driving/tour operating.

1. The evidence shows that Mr Talbott submitted an application to work for the respondent as a bus driver/tour operator. It is not disputed that he answered an advertisement in the press. Mr Talbott attended an interview in person and it is not disputed that it was agreed that he would drive buses and conduct tours for the respondent.

1. It is common ground that the supply of work was provided by the respondent to Mr Talbott, who provided his skill of driving buses and conducting tours to the respondent. He did not delegate the tasks he undertook for the respondent to any other person, including any other director of TMS. Mr Talbott's evidence was that he used TMS to receive income for financial reasons on the advice of his accountant. Invoices were issued to MBS on a monthly basis and not at the end of each task of work completed for MBS. Mr Talbott received payments including GST. Although the evidence shows that there were some issues regarding the payment of the GST, the evidence shows that GST was paid by MBS on the invoices presented to it by TMS for work performed by Mr Talbott.

1. The evidence shows that Mr Talbott required various authorisations by the Ministry of Transport in order to operate as a tour bus driver. The authorisations and qualifications were held by Mr Talbott personally and not by TMS. Mr Talbott did not supply the buses he drove for TMS. The buses and vehicles he drove for MBS were supplied by Lemite Pty Ltd to MBS, a company of which Mr Mark Wardrop was a director. Mr Talbott was subject to performance standards in respect of the how he performed his work for MBS, conducted tours on its behalf and operated the buses it provided. He was subject to the direction and control of MBS as to the predetermined schedule, the number of passengers, the route to be taken, and the format of the tours. Mr Talbott told the Tribunal that he obtained a runsheet from the respondent which set out whom he was to collect, and when and where the customers were to be returned. He worked on Mondays, Wednesday and Fridays. He worked elsewhere, but he stated that no other job took precedence over MBS work. Mr Talbott told the Tribunal that his work as a bus driver for MBS was seasonal in that he worked for MBS from September to May and that he carried out other work when there were no driving jobs. He said that he had worked as an auctioneer. None of this is disputed.

1. Written performance standards were issued by MBS to its employees and Mr Sperling gave evidence that Mr Talbott was expected to adhere to those standards and there were consequences if he did not. Mr Talbott was required to wear a uniform consisting of a shirt with the MBS logo on it in the summer and, in the winter, he was required to wear a vest and a rainjacket, again with the MBS logo. Mr Talbott was required to adhere to personal presentation standards set out by MBS. Correspondence from MBS to Mr Talbott was addressed to Mr Talbott personally and not to TMS. The email dated 18 July 2007 was addressed to Mr Talbott personally as was the final email on 22 January 2008.

1. In addition to these matters it was submitted on behalf of Mr Talbott that following Mr Talbott's complaint to the Anti-Discrimination Board (the ADB), Mr Sperling responded to an invitation by the Board for a response to the complaint. In his response, Mr Sperling stated to the ADB that Mr Talbott was an employee of MBS. Indeed, Mr Sperling stated on 22 October 2008 to the ADB that Mr Talbott was "employed on a casual basis as a tour driver/guide" and that he was "employed periodically throughout the year". It was submitted on behalf of Mr Sperling and the respondent, that this response was prepared without reference to the legal formalities and that the question of whether Mr Talbott is an employee should not be inferred from statements made without consideration to the actual legal relationship between the parties. It is accepted by the Tribunal that Mr Sperling prepared his response to the ADB without the benefit of legal advice, but the Tribunal also accepts that Mr Sperling's responses to the ADB show that he always viewed Mr Talbott as an employee, that his conduct implied an employer/employee relationship, and that the relationship was with Mr Talbott personally and not with TMS.

1. In reaching its decision in respect of the nature of relationship between Mr Talbott and MBS, the Tribunal has had regard to the totality of the relationship and has made its own objective assessment of the state of affairs between the parties. The Tribunal has concluded that MBS intended to engage Mr Talbott personally to perform work for it, and that there was no intention to engage TMS as such. The evidence shows that TMS was a company that was engaged in various activities, which were of no interest to MBS. Certainly, MBS accepted and paid invoices from TMS for work performed by Mr Talbott. In the Tribunal's view, this does not detract from the fact that it was Mr Talbott, and in particular his qualifications and experience, who was of interest to the respondent. Mr Talbott alone performed all of the work invoiced for by TMS for the respondent. He did not delegate it to anyone else and the evidence shows that this was MBS's expectation. Mr Talbott was provided with a uniform, which he was expected to wear. He personally was expected to comply with performance standards set by MBS. Mr Talbott was always dealt with personally by Mr Sperling and it was Mr Talbott personally, who was subject to the control and direction by the respondent as to how he performed the work he undertook for the respondent.

1. The Tribunal is satisfied that MBS intended at all relevant times to enter into a legal relationship with Mr Talbott personally and not with his company.

1. It is noted that submissions were made by the respondent that Mr Talbott's evidence should be rejected and the respondent's evidence preferred and accepted because Mr Talbott was dishonest with the ATO, in that he had completed employer/occupation company tax returns rather than tax returns reflecting the true nature of his relationship with the respondent. Under cross examination, Mr Talbott maintained that he correctly completed his tax returns and correctly claimed expenses. He agreed that TMS's total income increased from the income earned in 2008 to that earned in 2009. The evidence shows that he had an ABN and a trading company and that he completed individual tax returns and PAYG returns. In any event, in reaching its conclusion regarding the nature of Mr Talbott's relationship with MBS, the Tribunal has had regard to all of the evidence and in particular, to undisputed evidence. Accordingly, there is no need for the Tribunal to assess Mr Talbott's credit with respect to the lodgment of his tax returns.

1. It was also submitted on behalf of the respondent that Mr Talbott's explanation regarding the first accident on 16 April 2007 was implausible and was inconsistent with the report he prepared on the day of or soon after the accident. It was further submitted that Mr Talbott's evidence regarding the accident on 16 January 2008 was also implausible and that Mr Talbott incorrectly stated on 1 November 2007 and 14 October 2008 that he had had no accidents in his application for a licence. At the Tribunal hearing Mr Talbott denied that he had an accident in 2007, describing the incident as a "runaway". He also denied that the incident in January 2008 could be described as an accident, as it was just a "touch". None of these matters, in the Tribunal's view, detract from the conclusion reached by the Tribunal on the question of whether the relationship was between Mr Talbott and MBS or between TMS and MBS. Indeed they are irrelevant to it.

1. In determining whether a person is in an employment relationship, the Tribunal is required to make an objective assessment of the substance of affairs and the reality of the relationship between Mr Talbott and MBS.

1. The Tribunal is required to balance the indicia in favour of the existence of an employment contract with those not in favour. There are numerous criteria or indicia by which to gauge whether an employment relationship exists. The facts of the relationship must be carefully considered in order to balance the indicia both for and against. The principal criterion remains the employer's right to exercise control over the person engaged but the existence of control is not the sole determinant.

1. Regard must be had to a number of indicia such as the mode of remuneration, the provision and maintenance of equipment, the obligation to work, the right to dictate the hours of work, the provision for holidays, deduction of income tax, payment of superannuation, the right to have a particular person carry out the work, the right to delegate work, the right to dismiss the person and the right to the exclusive services of the person engaged amongst others. The supply of equipment is indicative of the fact that the relationship is not one of employment, but it is not determinative. The High Court in Hollis -v- Vabu Pty Ltd (2001) HCA 44 (9 August 2001) stated at paragraph 47 that "A different conclusion might, for example, be appropriate where the investment in capital equipment was more significant, and greater skill and training were required to operate it".

1. His Honour Justice Kirby stated in Connelly -v- Wells (1994) 10 NSWCCR 396 at 414 that, in balancing the indicia, the Court must bear "in mind the absence of rigid criteria and the necessity to consider the whole of the circumstances of the relationship" and have "a proper sense of modesty when it comes to the task of clarification". The Court of Appeal in Vacik Distributors -v- Kelly (1995) 12 NSWCCR 30 stated at page 34 "Given that there are, according to the authorities, a number of indicia upon which the issue of employment or independent contract is determined, it is readily apparent that informal arrangements such as the one concerned, the question whether a person is a servant or not can be very much a matter of impression".

1. The factors in favour of an employment relationship are as follows:

• The applicant wore a uniform provided by the respondent;
• The applicant did not supply his own equipment but drove vehicles provided by the respondent;
• The applicant was subject to predetermined schedules and was required to pick up, conduct tours and drop off clients of the respondent, as determined by the respondent;
• Rates of remuneration were set by the respondent;
• The respondent in its paperwork regarded its contractual relationship to be with the applicant personally;
• The applicant began and completed jobs as directed by the respondent;
• The respondent set performance standards with which the applicant was expected to comply;
• The respondent paid for medical expenses in respect of a workers compensation claim for an injury to Mr Talbott's left knee at work on 16 April 2007;
• The applicant did not employ others to carry out the work for the respondent and did not delegate the work he was given by the respondent; and
• The relationship between the applicant and the respondent was expected to be long term; it commenced in 2005 and continued through to 2008.

1. The factors not in favour of an employment relationship are as follows:

• the financial arrangements between the applicant and the respondent including the fact that the applicant invoiced the respondent in the name of his trading company, charged GST, and had his own ABN;
• tax was not deducted from payments made to the applicant;
• there were no payments of superannuation to the applicant;
• the applicant's payments were not increased even though his hours of work were increased; and
• the applicant was responsible for renewal of his authorisations to drive public passenger vehicles.

1. In balancing the indicia, the Tribunal is satisfied that the factors that indicate an employment relationship in particular are the right to set remuneration rates by the respondent, the right of the respondent to specify the jobs to be carried out by the applicant, the respondent's stipulation of a predetermined schedule with set start and completion times, and to set performance standards as well as the provision of a uniform outweigh those factors in favour of an independent contractor relationship. Mr Sperling's evidence that he reprimanded Mr Talbott on the occasion that he did not complete a tour as required, but dropped off passengers at the Homebush ferry, reinforces the Tribunal's view that ultimate control as to how Mr Talbott performed his job rested with the respondent. The Tribunal is of the view that Mr Talbott's relationship with the taxation office is not determinative for the reasons set out above.

1. Accordingly, the Tribunal finds that Mr Talbott was an employee of MBS for the relevant period from 2005 to 22 January 2008, for the purposes of the ADA.

1. In any event, even if the Tribunal were to have erred in its evaluation of the indicia and its conclusion that the relationship was an employment relationship, section 4 of the ADA defines "employment" for the purposes of the ADA as including work performed under a contract for services, so that if Mr Talbott would be covered by the provisions of section 49ZYB(2) even if he were an independent contractor.

Issue 2 - Did MBS discriminate against Mr Talbott on the ground of his age?

1. As stated previously in this decision section 49ZYB(2) of the ADA provides as follows:

(2) 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.

1. Relevantly, section 49ZYA 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, or

b) ...

(2)For the purposes of subsection (1)(a), something is done on the ground of a person's age of 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 person who are of that age or age group.

(3)...

1. Mr Talbott's complaint is cast as direct discrimination.

1. In order to be successful in his complaint, Mr Talbott must establish the following:

a) that the respondent committed an act or omission in relation to Mr Talbott;

b) that the act so committed amounted to less favourable treatment; and

c) that there is a causal nexus between the less favourable treatment and Mr Talbott's age.

1. Mr Talbott's age is only required to be one of the reasons, if the act is done for more than one reason, and age does not have to be the dominant or substantial reason.

1. The standard of proof is the balance of probabilities. The Appeal Panel in Burns v Laws (EOD) [2008] NSWADTAP 32 said the following in relation to the standard of proof that applies in discrimination matters:

136 Briginshaw is a case about the standard of evidence required to meet the burden of proof. It is doubtful whether Briginshaw needs to be incanted as ritually as it is in anti-discrimination law. See generally de Plevitz, 'The Briginshaw 'Standard of Proof' in Anti-Discrimination Law: 'Pointing with a Wavering Finger', (2003) 27 Melb Uni LR 308. See also the recent decisions, Qantas Airways Limited v Gama [2008] FCAFC 69 esp per Branson J at [123] ff; and Granada Tavern v Smith [2008] FCA 646 at [88]- [90].

1. Further in Chand v Rail Corporation of NSW (No 2) [2009] NSWADTAP 27 ( Chand ) the Appeal Panel referred to the Federal Court's discussion of the "Briginshaw standard" in Qantas Airways v Gama [2008] FCAFC 69 [at 55] and concurred with the approach taken by Branson J [at 139] in the Gama decision, where Her Honour stated as follows:

The correct approach to the standard of proof in a civil proceeding in a federal court is that for which s 140 of the Evidence Act provides. It is an approach which recognises . . . that the strength of the evidence necessary to establish a fact in issue on the balance of probabilities will vary according to the nature of what is sought to be proved - and, I would add, the circumstances in which it is sought to be proved. [Branson J at [139] ]

1. In addition the Appeal Panel referred to s 140 of the Evidence Act 1995 at [56] in Chand . That section provides:

(1) In a civil proceeding, the court must find the case of a party proved if it is satisfied that the case has been proved on the balance of probabilities.

(2) Without limiting the matters that the court may take into account in deciding whether it is so satisfied, it is to take into account:

(a) the nature of the cause of action or defence, and

(b) the nature of the subject-matter of the proceeding, and

(c) the gravity of the matters alleged.

1. This Tribunal has followed the approach set out in Chand , including the factors set out in s 140 of the Evidence Act 1995 .

1. The Tribunal must ask itself whether the conduct complained of amounts to differential treatment and, if so, whether that treatment was on the ground of age ( Commissioner of Corrective Services v Aldridge [2000] NSWADTAP 5). In Purvis v New South Wales [2003] HCA 62; (2003) 217 CLR 92 at [231] ( Purvis ) the High Court said that those two elements of direct discrimination - differential treatment and causation - must be treated separately and sequentially. There was no evidence before the Tribunal of an actual comparator. Examples of treatment afforded other drivers who had committed infractions were relied upon by the respondent, but none of those drivers could be said to be an "actual comparator". The Tribunal's view of the actual comparator is someone who was a bus driver for the respondent, who had three speeding infractions, two at-fault accidents, and a variety of minor customer complaints. The examples relied upon were considered, and consideration was also given to a "hypothetical comparator".

1. When the comparator is a hypothetical person the differential treatment question and the causation question must amount to a single question, that is, why was the person treated as he was? ( Shamoon v Chief Constable of the Royal Ulster Constabulary [2003] 2 All ER 26 at [7] and [8]) and in Dutt v Central Area Health Service [2002] NSWADT 133 ( Dutt ) where the Tribunal stated:

When the comparator is hypothetical, the first question cannot be answered as a simple, stand-alone question: the way a hypothetical comparator would be treated cannot be assessed separately from asking what the ground or grounds for treatment of the applicant were. If an applicant was Chinese and was refused service (or denied promotion, or given menial duties etc), we cannot say how the hypothetical comparator, who is not Chinese, would have been treated in the same circumstances. The only fact that it is possible to determine is the ground or grounds on which the applicant was actually refused service. Only when this is known can we say whether a hypothetical comparator would have been refused service in the same circumstances. The applicant could, for example, have been refused service on perverse or irrational grounds, or solely on a ground unrelated to race: it is not until the ground for the actual treatment is known that it is possible to say whether a hypothetical person not of the applicant's race would have been treated differently.

In Aldridge the Appeal Panel said that "if there is no relevant differential treatment it is unnecessary to consider the issue of causation". In the case of a hypothetical comparison, an extension of this might be: `but there is no basis on which to assess whether there would have been differential treatment until the cause for the actual treatment is known'.

This is not to disagree with the analysis in Aldridge, but to explain why in this matter, and we suggest in many others where the comparator is hypothetical, the two questions as to "less favourable treatment" and "on the ground of race" might be answered as part of the same reasoning exercise.

1. The majority of the High Court in Purvis said that:

... the central question will always be - why 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'.

1. The ADA uses the words "on the ground of", rather than "because of", but no different meaning is intended.

1. In the present circumstances in order to determine whether there has been differential treatment, a comparison must be made between the way MBS treated Mr Talbott and the way it would have treated a person of a different age but with the same number of accidents as Mr Talbott, the same number of customer complaints, and the same number of speeding infractions.

The first fax on 18 July 2007 and the meeting on 20 August 2007

1. On 18 July 2007 Mr Sperling sent the following fax to Mr Talbott:

Dear Robert

You are currently not working for Mount 'N Beach Safaris as a casual driver/guide, but as per your movements in previous years I would expect that sometime over the next couple of months you would be looking to return to work with us over the upcoming summer season.

Given the couple of months lead time before you would normally want to return to work with us, it is only fair that I advise you that it is not our intention to offer you a return position as a driver/guide with MBS in 2007/2008. This is a very a difficult decision.

Robert, your work with us over the past several years has been highly valued. Nonetheless, driving/guiding up to 12 hour shifts to/from the Blue Mtns in all weathers and with a bus full of sometimes difficult people along with city pickups and drop-offs in heavy traffic is not at all easy. Furthermore keeping to scheduled pickup times and simply physically climbing into/out of our 4WD buses is not easy. In good faith and recognizing you are now aged in your early 70's, what I suggest is that it's time to step back from frontline your driver/guide work.

I cannot offer you any other role within MBS however your excellent skill level in terms of mini bus driving and customer service manner means that I would highly recommend you for work around Sydney delivering various day tours and trips. Many organizations and groups require expert drivers on a daily basis and I would heartily recommend you for such as (sic) role.

Upon receipt of this letter please contact us as Mark and I would very much like to stay in touch and furthermore assist you in every way possible with your transition into another company or organization.

1. The evidence shows that following receipt of this letter Mr Talbott's wife contacted Mr Sperling and arranged an appointment. Mr Talbott claims that he was very distressed by this facsimile.

1. A meeting took place on 20 August 2007. Mr Talbott claims that Mr Sperling told him at that meeting that he had decided to put him on half-day city tours with the possibility of his returning to full-day tours in the future. Mr Talbott claims that he told Mr Sperling that he understood that his performance had always been satisfactory and that the decision felt like a demotion. He claims that Mr Sperling told him that there had been only two previous comments regarding his performance, that they were "not hanging offences" and that he considered Mr Talbott to be a valuable employee. Mr Talbott claims that he told Mr Sperling that if there had been comments made in respect of his performance, he should have been counselled at the time. He claims that Mr Sperling agreed with him.

1. Mr Sperling's recollection of the conversation is different. He claims that he told Mr Talbott that he believed that Mr Talbott was incapable of delivering a tour to the performance standard required, because he had crashed a bus on 16 April 2007 and there had been a number of complaints about his tours. He claims that he had met with Mr Talbott about these matters countless times. He agreed that he offered to re-engage TMS with Mr Talbott performing amended duties subject to the approval of Mr Mark Wardop, the Director of Lemite Pty Ltd, the company that owned, maintained and supplied the vehicles to MBS. Mr Sperling agreed that he told Mr Talbott that the complaints were not "hanging offences", but that the crash was a serious "at-fault" accident.

1. The evidence from Mr Wardrop is that on 16 April 2007 he became aware that Mr Talbott had been involved in an accident involving the vehicle having registration number TV043. The mechanic told him that the damage to the vehicle was limited to a cracked lens on an indicator light. There was no evidence of any mechanical fault with the handbrake and no repairs were required. He believed that Mr Talbott had failed to properly engage the handbrake and that the vehicle had not been left in gear, because if these things had been attended to, the vehicle would not have rolled. Mr Sperling's evidence is that he had a full de-brief about the incident with Mr Talbott and that the damage caused to another vehicle by the runaway bus was in the order of $7500. Mr Sperling claims that at about that time in March or April 2007 he had a conversation with Mr Wardrop about his concerns regarding Mr Talbott and that he had decided to no longer engage TMS. Mr Wardrop confirmed that Mr Sperling told him around this time that he was not happy with Mr Talbott's work performance.

1. Mr Talbott's version of the incident was that on 16 April 2007 he was conducting a full day tour in the Blue Mountains and that while in the Sydney CBD, he was involved in a runaway bus incident. He claims that the accident occurred after he parked the tour bus on Macquarie Street and applied the handbrake. He claims that after he exited the bus, he noticed that it was slowly moving forward. He quickly re-entered the bus and attempted to prevent it from colliding with other vehicles but was unsuccessful. He claims that he damaged his left knee, which required ongoing treatment. He informed Mr Sperling about the incident and the injury. An MRI of the left knee showed that he had sustained a full thickness medial collateral ligament tear. He claims that he was not asked to complete an incident report about the runaway bus, that his left knee was injured in this incident, and that he completed an incident report and provided a WorkCover Medical Certificate to MBS. Mr Talbott claims that he was not counselled about this incident.

1. It is agreed between the parties that following the meeting on 20 August 2007 Mr Sperling offered Mr Talbott city sights half-day tours.

1. The Tribunal is satisfied that the drafting and despatch of the facsimile is an act committed by MBS in relation to Mr Talbott's employment conditions. The facsimile of 18 July 2007 intended to terminate the employment relationship between MBS and Mr Talbott and the stated reason was Mr Talbott's age. Mr Sperling told the Tribunal in oral evidence that Mr Talbott was a difficult person to deal with and that he did not listen. Mr Sperling maintained that he had spoken with Mr Talbott about two speeding infringements, complaints by customers about being dropped off at the Homebush ferry when they should have been dropped off at their hotels, and about the at-fault accident on 16 April 2007, on many occasions. Mr Talbott stated that there had been no prior counselling, no additional training and no warnings in respect of any alleged speeding incidents. Mr Talbott stated that these breaches, in any event, were not serious and that the examples of employees who have been dismissed by MBS committed much more serious breaches.

1. In his correspondence with the ADB Mr Sperling referred to the treatment of other drivers who had committed breaches for which their employment was either terminated or suspended. Mr Sperling stated that "at-fault" accidents were MBS's number one concern. Mr Sperling provided three letters sent to drivers regarding concerns and action to be taken in respect of that driver. The first dated 5 October 2007 stated that the driver would be suspended for fourteen days because the driver had been speeding on six occasions over a period of some weeks. When this was brought to the attention of the driver the driver's attitude was described as flippant. In the letter Mr Sperling refers to prior letters of warning sent to the driver regarding the issue of speeding, suggesting that this was an ongoing problem. The driver was asked to show cause.

1. The second letter dated 3 November 2008 concerned 7 issues which included unauthorised phone use, unauthorised tolls, taking holidays at a bad time, speeding, not working rostered shifts, cutting trips short, and dropping passengers at a ferry instead of dropping them off at their hotels. The letter was a warning letter, in which Mr Sperling stated "Collectively these problems are considered serious and if there is not some observable change to each of these points then your ongoing work with us will be reduced to the point whereby you may have no work with us". The driver was asked to "assess whether you can work within our rules or not".

1. The third letter dated 20 July 2007 itemised four issues including arriving late for work, causing damage to the rear bumper of a 16 seater bus, leaving dirty cups in the kitchen for others to wash up, and speeding in excess of 115 kilometres per hour again. Mr Sperling stated in this letter to the driver that "repeats of some/all of these problems listed above will see your employment terminated". The letter bore the title "Counselling".

1. The evidence from Mr Sperling regarding Mr Talbott's work performance was that there had been some complaints from customers about not being able to hear his commentary very well and that he spoke inappropriately about personal matters, that he did not provide water to passengers, that the air-conditioning did not work properly on the bus, that he was speeding on two or three occasions, and that, as at July 2007, he had one at-fault accident. Mr Talbott claims that he did not receive any warnings or counselling about these matters and although Mr Sperling stated that he had spoken with Mr Talbott on many occasions about these matters, he did not produce any documentary evidence of letters of warning or counselling, such as had been sent to other drivers. The only evidence produced in this regard were three tachocards in respect of speeding. The evidence shows that other drivers, who had committed more serious breaches, were given warnings of potential adverse consequences and were given the opportunity to address the problem. Mr Talbott was not. He was not given any warning that if he did not address these performance issues he would not be given any more work. It is clear from the evidence that Mr Talbott was treated more harshly than other drivers who had arguably committed more serious breaches and that the reason was his age.

1. The Tribunal is also of the view that if the "at fault" accident was considered to be a breach sufficiently serious to warrant dismissal, then it is illogical that Mr Sperling would have agreed to offer Mr Talbott city tours and say in evidence that he could have had as many of those tours as he wanted, because he was happy with his performance in this regard. This is simply inconsistent with a view that the "at- fault" accident was a serious concern. Indeed Mr Sperling's own evidence is that the complaints raised in relation to Mr Talbott were not "hanging offences".

1. The Tribunal is satisfied that Mr Talbott was treated less favourably than other MBS drivers in that he was restricted to driving half-day city tours, when other drivers were allowed to conduct full-day tours.

1. None of these breaches was referred to in the facsimile sent to Mr Talbott on 18 July 2007. The Tribunal does not accept that if Mr Sperling was seriously dissatisfied with Mr Talbott on the basis of his performance as at April 2007, as claimed in his discussions with Mr Wardrop, that he would have first, waited several months to tell him that he would not be given any more work and second, that he would not have mentioned the alleged performance issues in the subject facsimile. Instead the facsimile praises Mr Talbott on his performance and states clearly that the issue is his age. Mr Sperling told the Tribunal that MBS employs people in their 50s and 60s and has another employee aged 70. This does not however indicate that Mr Sperling acting as agent for the respondent did not consider Mr Talbott's age to be a factor in the respondent's perception that he was having difficulty in carrying out his work for the respondent and was the reason that it would not be offering him any more work. The Tribunal is fortified in this view by Mr Sperling's own evidence in his facsimile to the ADB dated 22 October 2008 wherein he stated: " In my letter to Mr Talbot (sic) on 18 July 2007 I make mention of the difficulties which he was experiencing working with us in respect of driving 12 hour shifts, keeping the required schedules and physically climbing into and out of our 4WD buses (you have to climb to get into the buses). In short this is physically hard and stressful work and he was not able to deliver to a satisfactory standard. I therefore suggested that he should start driving smaller vehicles and less stressful city sights tours." The Tribunal is satisfied that when considered together, the inference can be drawn that Mr Sperling considered that Mr Talbott was finding it physically hard to do the work and the reason for this was his age, as stated.

1. The Tribunal is not satisfied that, as at 18 July 2007, Mr Talbott's performance was the reason for the intended dismissal. The Tribunal considers that Mr Sperling's perception was that Mr Talbott was getting older and, as stated in his facsimile, getting in and out of the buses and handling the bigger buses was for that reason becoming more difficult. Although it is probable that the runaway bus and its costs to the respondent were an issue, the Tribunal is of the view on the balance of probabilities that the stated reason, being Mr Talbott's age, was one of the reasons for the dismissal facsimile. The Tribunal notes that Mr Sperling told the ADB that he did not refer to the performance issues in the first facsimile because he wanted to maintain the self-esteem of the driver. The Tribunal does not accept this explanation, because the paternalistic remarks regarding Mr Talbott's perceived diminishing capacity to carry out his work on the basis of his age could be regarded as more insulting and could be regarded as, in all probability, adversely impacting on a driver's self-esteem.

1. The Tribunal finds that Mr Talbott's employment conditions were changed to his detriment on 18 July 2008 and that one of the reasons was his age. The Tribunal is satisfied that given the treatment received by other drivers who had arguably committed more serious breaches that a hypothetical comparator in similar circumstances who was not the same age as Mr Talbott would not have been treated in the same way.

Facsimile from MBS to Mr Talbott on 22 January 2008

1. On 16 January 2008 Mr Talbott was involved in another "at-fault" accident. The evidence shows that while another vehicle was reversing, Mr Talbott reversed his vehicle in order to avoid being hit, but that as he did so he collided with another vehicle behind him. Mr Sperling's evidence was that MBS therefore had serious concerns about Mr Talbott's capacity as a bus driver. Mr Sperling's evidence is that MBS had lost confidence in Mr Talbott's ability to drive any bus safely. It was Mr Sperling's evidence that this led to MBS's decision to no longer engage TMS.

1. Consequently, Mr Sperling sent the following facsimile to Mr Talbott on 22 January 2008 terminating his work:

Dear Rob

Last year after certain letters and follow-up discussions between you and I, we agreed to continue to have you work for Mount 'N Beach providing city sights tours. I wish to advise that effective from now on, we will not be scheduling you for any further work as a driver/guide with Mount 'N Beach.

My point of concern relates to a whole range of safety issues in respect of operating our public passenger vehicles. Passenger safety is of course paramount at all times. Having just returned from my recent overseas trip I've been advised that recently whilst you were stationary in an MBS vehicle, in the action of trying to avoid another vehicle potentially hitting the front of the MBS vehicle driven by you, you have then reversed into a second vehicle. I understand all of this happened at very low speed. Mark Wardrop and I are extremely sensitive in regard to safe passenger vehicle operations. In view of our previous discussions relating to vehicle safety and other issues, I'm therefore advising you as above that you won't be driving any further tours of any kind for MBS.

In the event that MBS is levied with insurance excess costs as a result of this "at fault" accident please note we will claim up to a maximum of $500.00 contribution from you towards our costs. Hopefully we won't incur any costs but it's too early to know at this stage.

I wish you all the best with your tourism work in the future.

1. Mr Sperling acknowledged to the Tribunal that the incident happened at low speed and that the damage to both vehicles was minimal. Mr Sperling maintained however, in his written and oral evidence to the Tribunal, his view that the only correct course for Mr Talbott to have adopted in the circumstances of the incident was to drive "defensively", so that he should have allowed the driver of the vehicle in front of him to hit the bus so that he would not be considered to be "at-fault" and thereby ensuring recovery under MBS's insurance policy. The fact that he did not resulted in Mr Talbott's dismissal.

1. There is no evidence of any warning or counselling provided to Mr Talbott in respect of this incident. Within six days of the incident, Mr Talbott was informed that he would receive no further work from MBS.

1. It is the Tribunal's view that Mr Sperling had, by 22 January 2008, determined that MBS wanted to dismiss Mr Talbott and that one of the reasons was his age, as stated in the first facsimile on 18 July 2007. In the absence of any direct evidence in this regard, the Tribunal draws this inference on the basis of all of the evidence before it and in particular, because of the way Mr Sperling treated Mr Talbott, without any written warning or counselling or even seeking an explanation as to what had occurred and asking him to show cause, as he had done with other employees who had committed infractions. The Tribunal is satisfied that a hypothetical comparator who was not Mr Talbott's age of 75 years but who had been involved in two minor at-fault accidents, three speeding breaches and minor customer complaints would not have been treated summarily as Mr Talbott was.

1. The Tribunal is satisfied on the balance of probabilities that it is reasonable to draw the inference that it was Mr Talbott's age for the less favourable treatment and that it appeared that Mr Sperling had decided that he had become a liability.

1. The complaint is substantiated.

Relief

1. Mr Talbott claims loss of earnings as a result of the discrimination, a written apology, as well as an order that the respondent undertake a course outlining equal opportunity obligations and damages for pain and suffering.

1. Mr Talbott claims loss of income following his dismissal in January 2008. The evidence from MBS shows that from 22 September 2007 to 29 February 2008, Mr Talbott invoiced MBS $5855 inclusive of GST for the period September to 22 January 2008. This period covers about four months. Had he worked the full season, he would have worked for MBS until May 2008, that is, another four months. The last invoices are dated 29 February 2008, but the Tribunal is satisfied that these invoices pertain to work carried out up to 22 January 2008. Mr Talbott was not offered any work beyond that date by MBS. Mr Talbott claims that his tax returns indicate a loss of income in the order of about $20,000 between 2007 and 2008 and that some of this loss was due to the loss of work from MBS. The gross figures then show not only a recovery of income but an increase of about $11,000 in 2009. Mr Talbott submits that it is appropriate to award the loss of income for the period to May 2008, which is about $5855 less GST. The figure claimed is therefore $5323.

1. TMS's company tax returns show a drop in income earned by Mr Talbott from 2007 to 2008 and then an increase in 2009. The tax returns do not specify the sources of the income and it is too difficult for the Tribunal to determine what loss was in fact sustained. However, given that Mr Talbott worked three days a week for MBS seasonally from September to May each year from 2005, it is reasonable to assume that he would have continued to do so until May 2008 in the same way as he had previously. It is reasonable to assume that over the four months from January to May 2008 he would have earned the same amount as he had from September 2007 to January 2008. It is also reasonable to assume that he would not have been able to organise other work to fill in the gap at short notice. He was told on 22 January 2008 that he would be given no more work by MBS, without any notice period. The Tribunal therefore determines that a reasonable assessment of loss of income resulting from the act of discrimination is $5323. The Tribunal notes that Mr Talbott has not claimed any loss in respect of what he perceived to be a demotion by only being given half-day city tours after 18 July 2007.

1. The Tribunal is satisfied that it is appropriate that there should also be an award for general damages for the act of discrimination, which covers matters such as hurt, humiliation, and injury to feelings, because there has been a contravention of a statutory right to not be discriminated against on the ground of age in employment.

1. As acknowledged by Wilcox J in Hall v Sheiban (1985) ALR 503 at 543, the task of determining the appropriate level of damages in a case of unlawful discrimination is difficult:

....damages for such matters as injury to feelings, distress, humiliation and the effect on the complainant's relationships with other people are not susceptible to mathematical calculation...To ignore such items of damage simply because of the impossibility of demonstrating the correctness of any particular figure would be to visit an injustice upon the complainant by failing to grant relief in respect of a proved item of damage.

1. Mr Talbott gave evidence that he was distressed when he received the facsimile dated 18 July 2007. He said that he felt "gutted" by the dismissal and disappointed that issues had not been raised with him. He also said that he felt a sense of injustice when he was finally dismissed on 22 January 2008 and he did not understand why he had been dismissed. The Tribunal accepts Mr Talbott's evidence in this regard and also notes that he perceived he had been demoted, without being given an opportunity to explain himself as a result of the first facsimile on 18 July 2007.

1. The Tribunal is satisfied that Mr Talbott was treated in a demeaning and paternalistic way on the basis of his age. The tone of the facsimile on 18 July 2007 is offensive and disempowering. The second facsimile on 22 January 2008 dismisses Mr Talbott summarily, without offering him an opportunity to explain himself. The Tribunal is satisfied that that the appropriate amount of compensation is $20,000 in respect of the age discrimination complaint that has been substantiated.

1. In accordance with section 108(2)(d) the Tribunal orders that the respondent provide a written apology to Mr Talbott in respect of the acts of discrimination within 28 days of this decision.

1. The Tribunal directs the respondent to pay the amount of $25,323 to Mr Talbott within 28 days of this decision.

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Decision last updated: 04 April 2011