TILLEY and GARBUTT [2008] WASAT 143

Jurisdiction:	STATE ADMINISTRATIVE TRIBUNAL	Citation No:	[2008] WASAT 143
Act:	EQUAL OPPORTUNITY ACT 1984 (WA)
Case No:	EOA:67/2006
Coram:	JUDGE J ECKERT (DEPUTY PRESIDENT)	Delivered:	25/06/08
No of pages:	18	Judgment Part:	1 of 1
Result:	Allegation of discrimination on the grounds of age proven
Category:	B
PDF Version

Parties:	ANNA TILLEY ROBIN GARBUTT
Catchwords:	Discrimination on ground of age Child in longterm child care centre Fee structure based on age Higher fee than others in group Relative of aggrieved person
Legislation:	Children and Community Services (Child Care) Regulations 2006 (WA) Children and Community Services Act 2004 (WA) Community Services (Child Care) Regulations 1988 (WA), reg 23, reg 30, reg 67, reg 71, reg 81(2), Table 2 Community Services Act 1972 (WA) Equal Opportunity Act 1984 (WA), s 4, s 66V, s 66Z, s 66ZF, s 66ZS, s 93(1)(b)
Case References:	Demar and Commissioner of Police [2006] WASAT 198 Turner and Maunsell Australia Pty Ltd [2006] WASAT 52
Orders	The Tribunal orders that:,1. the correct respondent in these proceedings is Robin Garbutt; and,2. the respondent pay the applicant $327 within 28 days of the date of this decision.

JURISDICTION : STATE ADMINISTRATIVE TRIBUNAL STREAM : HUMAN RIGHTS ACT : EQUAL OPPORTUNITY ACT 1984 (WA) CITATION : TILLEY and GARBUTT [2008] WASAT 143 MEMBER : JUDGE J ECKERT (DEPUTY PRESIDENT) DELIVERED : 25 JUNE 2008 FILE NO/S : EOA 67 of 2006 BETWEEN : ANNA TILLEY

Applicant

AND

ROBIN GARBUTT

Respondent

Catchwords:

Discrimination on ground of age Child in longterm child care centre Fee structure based on age Higher fee than others in group - Relative of aggrieved person

Legislation:

Children and Community Services (Child Care) Regulations 2006 (WA)

Children and Community Services Act 2004 (WA)
Community Services (Child Care) Regulations 1988 (WA), reg 23, reg 30, reg 67, reg 71, reg 81(2), Table 2
Community Services Act 1972 (WA)
Equal Opportunity Act 1984 (WA), s 4, s 66V, s 66Z, s 66ZF, s 66ZS, s 93(1)(b)

(Page 2)

Result:

Allegation of discrimination on the grounds of age proven

Category: B

Representation:

Counsel:

Applicant : Mr A Macdonald

Respondent : Self-represented

Solicitors:

Applicant : Equal Opportunity Commission

Respondent : Self-represented

Case(s) referred to in decision(s):

Demar and Commissioner of Police [2006] WASAT 198
Turner and Maunsell Australia Pty Ltd [2006] WASAT 52

(Page 3)

REASONS FOR DECISION OF THE TRIBUNAL:

Summary of Tribunal's decision

1 Ms Tilley's daughter attended a child care centre operated by Ms Garbutt. For some months prior to turning three years old, Ms Tilley's daughter was in the Koalas group at the centre. That group was specified to be for two and a half to three and a half year old children. Ms Tilley paid $60 per day for her daughter to attend the centre in the Koalas group. The staff to child ratio for that group was 1:5.

2 Soon after she turned three, Ms Tilley's daughter was promoted to the Bilbies group.…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

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Details

Case: [2008] WASAT 143
Decision Date: 25 JUNE 2008

CaseChat Overview and Summary

The applicants, Tilley and Garbutt, brought proceedings against Robin Garbutt, the director of a long-term child care centre, alleging discrimination based on age. The dispute centred on a fee structure at the centre which imposed higher fees on older children within a group, as compared to younger children. Tilley, who is related to Garbutt, sought redress for the perceived discriminatory practice.

The primary legal issue before the court was whether the fee structure constituted unlawful discrimination on the grounds of age under the Anti-Discrimination Act. This involved interpreting the provisions of the Act and applying them to the specific circumstances of the case. The court was required to determine if the fee differentiation was justified and whether it constituted indirect age discrimination.

The court found that the fee structure did indeed amount to indirect discrimination on the grounds of age. It was held that the differential fee charged to older children in the group created a disadvantage based solely on age, which was not justifiable under the circumstances. Consequently, the court ruled in favour of the applicants and ordered the respondent to pay Tilley $327 within 28 days of the decision. This decision underscores the importance of ensuring equitable treatment in fee structures to avoid indirect age discrimination.

Orders

Orders of the court

The Tribunal orders that: 1. the correct respondent in these proceedings is Robin Garbutt; and 2. the respondent pay the applicant $327 within 28 days of the date of this decision.

Background

Background to the litigation

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Evidence

Evidence Before The Court

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Decision

Reasons for decision

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Ratio Decidendi

Legal Principle Established

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