TILLEY and GARBUTT
[2008] WASAT 143
•25 JUNE 2008
TILLEY and GARBUTT [2008] WASAT 143
| STATE ADMINISTRATIVE TRIBUNAL | Citation No: | [2008] WASAT 143 | |
| EQUAL OPPORTUNITY ACT 1984 (WA) | |||
| Case No: | EOA:67/2006 | ||
| Coram: | JUDGE J ECKERT (DEPUTY PRESIDENT) | 25/06/08 | |
| 18 | Judgment Part: | 1 of 1 | |
| Result: | Allegation of discrimination on the grounds of age proven | ||
| 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)
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. That group was specified to be for children over three and a half years old. The centre staff assessed Ms Tilley's daughter to be developmentally ready to move to the Bilbies group which provided a preschool environment. The staff to child ratio for that group was 1:10.
3 Even though Ms Tilley's daughter was in the higher group with the lower staff ratio, Ms Garbutt continued to charge Ms Tilley $60 per day. Ms Garbutt told Ms Tilley that fees were based on age and that the fee would not change until her daughter turned three and a half. The other children in the Bilbies group who were aged three and a half or older were charged $53 per day.
4 Ms Garbutt gave evidence that fees were charged according to the age of the child. This was so, if children of different ages were in the same group and receiving the same service and level of care. Age was the sole determinant of the fee.
5 The Tribunal found that Ms Garbutt discriminated against Ms Tilley's daughter (and therefore Ms Tilley) on the grounds of her age pursuant to the Equal Opportunity Act 1984 (WA). This was because Ms Tilley's daughter was charged a fee based solely on her age which was a different fee than other children in the Bilbies group who were over three and a half years of age were charged. The Tribunal ordered Ms Garbutt to pay Ms Tilley $327 being the fees that Ms Tilley was overcharged.
Background
6 The applicant, Ms Tilley, alleges that the respondent, Ms Garbutt, discriminated against her under s 66V(2)(a) and s 66ZF(1)(b) of the Equal Opportunity Act 1984 (WA) (the Act).
(Page 4)
7 Ms Garbutt is the registered proprietor of the business name known as "Harmony Child Learning Centre" (centre). That business is a licensed child care service provider and is subject to Commonwealth and State regulation regarding the provision of long-term child care. Ms Garbutt established the centre in 1990. It is licensed to provide services to 72 children at any given time. The centre provides child care services for 140 families and at the time of these allegations, Ms Garbutt employed 15 staff at the centre.
8 Ms Tilley alleges that she was discriminated against on the grounds of age in that she was charged a fee for her 3-year-old daughter that was applicable to children in a lower group with a higher staff ratio (Koalas group) than the group her daughter was in (Bilbies group).
9 Ms Tilley lodged a complaint with the Commissioner for Equal Opportunity (Commissioner) on 14 July 2006. The Commissioner endeavoured to conciliate the complaint but as conciliation was not successful she referred the complaint to this Tribunal under s 93(1)(b) of the Act.
10 The Tribunal attempted to mediate these proceedings on two occasions but without success. The matter was then listed for hearing, however, just prior to the hearing, Ms Tilley advised that she was unable to attend in person. She had moved interstate some months earlier with her husband and family and due to illness was unable to fly to attend the hearing. Ms Tilley's counsel suggested that the Tribunal either adjourn the hearing, take further submissions and decide the proceedings on the papers or deal with the matter on the papers except to the extent that Ms Garbutt wished to cross-examine Ms Tilley which she could do by videolink. The Tribunal, with Ms Garbutt's agreement, decided to deal with the matter on the papers and called for further submissions from the parties which were subsequently provided.
11 The Tribunal had before it witness statements from Mr and Ms Tilley on behalf of the applicant and from Ms Johnston, a staff member at the centre, and Ms Garbutt for the respondent.
Structure of the centre
12 Children who attend the centre are grouped according to an age range. Different staff ratios apply in different age groups and children do different activities depending on which group they are in. That structure is set out in Table 1. The relevant period referred to in Table 1 is 14 February 2006 to 10 July 2006, being the period that Ms Tilley says
(Page 5)
- she was overcharged by Ms Garbutt, and during which she says she was discriminated against on the grounds of age.
Table 1 | |||
Structure during the relevant period | |||
Group name | Age range | Daily fee | Staff ratio |
Joeys | 6 – 18 months | $60 | 1:4 |
Possums | One and a half years - Two and a half years | $60 | 1:4 |
Koalas | Two and a half years - Three and a half years | $60 | 1:5 |
Bilbies | Over three and a half years | $53 | 1:10 |
13 The Community Services (Child Care) Regulations 1988 (WA) (repealed regulations) applied during the relevant period. Regulation 30 of the repealed regulations set out the required staff ratios for particular age groups: see Table 2.
(Page 6)
Table 2 | |
| Staff to child ratio |
0 - two years | 1:4 |
One and a half years - Two and a half years (At least 70% of children two years or older) | 1:5 |
Two years - Three years | 1:5 |
Two and a half years or older (At least 70% of children three years or older) | 1:10 |
Three years or older | 1:10 |
14 The balance of that table specified the educational qualifications for staff with respect to each of those age groups and the numbers of staff of each qualification required, which was dependent on the number of children in that age group at the centre.
15 As Table 2 shows, there was flexibility to allow 30% of children in some age ranges to be cared for at a lower staff ratio. This recognises that some children require higher levels of care than others of the same age; it also allows limited administrative flexibility for child care centres to structure their centre according to their staffing capacity. The effect of this is that some children could move to different care levels during a six-month crossover period.
16 After 10 July 2006, the centre charged daily fees based on age as set out in Table 3. The structure of the four groups remained as above. Therefore, the parents of children in Possums and in Koalas could pay a different fee than others in the same group based solely on the age of their children. This is reflected in Table 4.
(Page 7)
Table 3 | |
Daily fee after 10 July 2006 | |
Age | Daily fee |
6 months - 2 years | $68 |
2 - 3 years | $60 |
Over 3 years | $56 |
Table 4 | ||
Daily fees applicable to groups after 10 July 2006 | ||
Group | Age range | Fee range |
Joeys | 6 - 18 months | $68 |
Possums | One and a half years - Two and a half years | $68/$60 |
Koalas | Two and a half years - Three and a half years | $60/$56 |
Bilbies | Over three and a half years | $56 |
17 Ms Garbutt's evidence is that children rarely progress into different groups precisely at the time of their birthday, but that staff make an assessment of a child and recommend whether or not they should progress into the next group. This appraisal is done by staff completing a "Readiness to Move" report with respect to the child, in which staff assess a child's social, emotional and intellectual development. If staff recommend that the child be promoted to the next group, then parents are consulted and their consent to the move obtained. Ms Garbutt explained
(Page 8)
- that there are a range of reasons including current family circumstances which might result in a parent deciding not to promote their child to another group despite them being socially, emotionally and intellectually ready to move. Ms Garbutt also gave evidence which is not contested that the process of deciding to move a child was also dependent on whether or not there was a position available in the group above.
18 It is not contested that fees at the centre were set according to age and that Ms Tilley was aware of this. However, Ms Tilley argues that the age groups related to the group that the child was placed in and that fees therefore should relate to the group that the child participates in, regardless of the child's actual age. Ms Garbutt submits that fees are set according to the age of the child regardless of what group they are in. She says this avoids parents seeking to promote their children merely to pay a lower fee and it also provides a completely objective measure for setting of fees rather than what would otherwise be a subjective formula. The centre's brochure says that fees "are structured to meet the licensing requirements for staff to client ratios".
Facts
19 Ms Tilley's daughter was born in January 2003; her second child was born in October 2005.
20 Ms Tilley's daughter attended the centre from 25 May 2004 until 26 October 2006. She attended three days a week, then two days a week and finally one day per week. The daughter's third birthday was in January 2006. At that time, she had been attending the centre as part of the Koalas group, which was a "pre-kindy" group.
21 On 14 February 2006, Ms Tilley's daughter commenced in the Bilbies group. This group was, in essence, a pre-school group with a learning and educational environment that provided training in Letterland, values and French, amongst other things.
22 Ms Tilley says that it was only at the request of Ms Garbutt and after several days' consideration by her and her husband that they agreed that their daughter could be promoted to the Bilbies group, even though she was not yet three and a half years old. Ms Tilley says that Ms Garbutt advised her that her daughter was developmentally and emotionally mature enough to progress into the Bilbies group despite having just turned three and despite the Bilbies group being for children older than three and a half. She claims that Ms Garbutt told her she (Ms Tilley) would be "holding her child back" if she did not agree to promote her into
(Page 9)
- the Bilbies group. Ms Garbutt also advised Ms Tilley, and this is not contested, that several of the daughter's friends were also moving into the Bilbies group at that time and that it was unlikely that there would be a place available in the Bilbies group for some time after that date.
23 Ms Garbutt continued to charge Ms Tilley the same fee that she had paid when her daughter was in the Koalas group, which was $60 per day, as opposed to the fee charged for other children in the Bilbies group which was $53 per day. This was despite the staff ratios for the Koalas group being 1:5 whilst the ratio for the Bilbies group was 1:10. Ms Tilley spoke with Ms Garbutt by telephone and queried why she was still being charged the higher rate. Ms Garbutt told her that fees were charged according to age, not group, and that she would continue to be charged the higher rate until her daughter turned three and a half.
24 Ms Tilley says she then asked Ms Garbutt about complaint procedures and that Ms Garbutt's response was dismissive. Ms Garbutt says she gave Ms Tilley the relevant and appropriate information. Under reg 71 of the repealed regulations, the complaints procedure had to be displayed in full near the main entrance of the centre.
25 On 23 March 2006, Ms Tilley wrote to Ms Garbutt asking why she was being charged the higher fee when her daughter was in the group that the centre's website and other publications specified would attract a lower daily fee of $53. In the letter, Ms Tilley requested a written response. Ms Tilley says Ms Garbutt did not respond to her letter. Ms Garbutt says that in the week after she received the letter, she advised Mr Tilley orally that fees were set by age and that they would continue to be charged at the rate for three year olds until their daughter turned three and a half when the rate would drop to $53 per day. Ms Garbutt says she assumed Mr Tilley would pass on this information to his wife, although she admits that, in retrospect, she should have responded to Ms Tilley in writing. The centre's complaint procedures specified that a written response should be provided to a complaint.
26 In May 2006, Ms Garbutt told Ms Tilley about her conversation with Mr Tilley, which she had assumed was an adequate response to Ms Tilley's letter. In his witness statement, Mr Tilley does not refer to whether or not he recalls the conversation with Ms Garbutt (or whether it did occur) although he was aware of Ms Garbutt's assertions regarding the conversation when he made his statement. Unfortunately he could not be cross-examined on it.
(Page 10)
27 Ms Tilley says she was very upset by Ms Garbutt's response. She says she felt hurt and humiliated and was no longer able to drop her daughter off at the centre and pick her up at the end of the day. Mr and Ms Tilley both say that after their daughter was moved into Bilbies and because Ms Tilley felt humiliated, they arranged for Mr Tilley to drop off and pick up their daughter. They say that this caused them quite a lot of inconvenience as Mr Tilley was working 32 kilometres from the centre whilst Ms Tilley was at home one kilometre from the centre. However, the centre's records do not bear this out. During the three-month period when the Tilleys' second child was born, Mr Tilley did all of the dropping off and picking up of the elder daughter at the centre. Historically, Mr Tilley had done the large majority of drop-offs and pick-ups at the centre. The contention that Mr Tilley took over this role because of the hurt and the humiliation felt by Ms Tilley was not borne out by the documentary evidence.
28 Ms Tilley claims $329, being the amount she says she was overcharged by Ms Garbutt. Ms Garbutt has on several occasions in her written submissions and responses offered to pay that amount or $500 as an ex gratia payment to Ms Tilley's choice of charity. These offers have not been taken up. Ms Tilley also seeks unspecified general damages for the hurt and humiliation she says she has suffered.
Relevant legislation
29 Section 66V of the Act defines discrimination on the grounds of age. In particular s 66V(2)(a) provides:
"For the purposes of sections 66ZE, 66ZF and 66ZG, a person (in this subsection referred to as the 'discriminator') discriminates against another person (in this subsection referred to as the 'aggrieved person') on the ground of age if, on the ground of -
(a) the age of;
…
any relative or associate of the aggrieved person, the discriminator treats the aggrieved person less favourably than in the same circumstances, or in circumstances that are not materially different, the discriminator treats or would treat a person who is not of such an age."
(Page 11)
30 Section 4 of the Act defines "relative":
"'relative', in relation to a person, means a person who is related to the first-mentioned person by blood, marriage, affinity or adoption and includes a person who is wholly or mainly dependent on, or is a member of the household of, the first-mentioned person".
31 Ms Tilley therefore says she is the aggrieved person for the purposes of s 66V(2) in that she was charged an amount because of the age of her daughter who is a relative of hers under the Act.
32 Section 66ZF(1) provides for discrimination on the grounds of age to be unlawful in certain circumstances as follows:
"(1) It is unlawful for a person who, whether for payment or not, provides goods or services, or makes facilities available, to discriminate against another person on the ground of the other person’s age -
(a) by refusing to provide the other person with those goods or services or to make those facilities available to the other person;
(b) in the terms or conditions on which the first-mentioned person provides the other person with those goods or services or makes those facilities available to the other person; …"
"(1) Nothing in Division 2 or 3 renders unlawful discrimination by an employer, principal or person against another person on the ground of the other person’s age in the terms and conditions on which -
…
(e) goods, services or facilities are provided or made available,
(Page 12)
- as the case requires, if those terms and conditions are imposed in order to comply with health and safety considerations which are reasonable in the circumstances.
(2) In determining for the purposes of subsection (1) what health and safety considerations are reasonable in all the circumstances, regard shall be had to all relevant circumstances of the particular case, including the effect of the discrimination in question on the person against whom that discrimination takes place."
34 Section 66ZS(1)(a):
"Nothing in this Part renders unlawful anything done by a person if it was necessary for the person to do it in order to comply with a requirement of -
- (a) any other written law which is in force when this Part comes into operation …"
The issues
35 The Tribunal must decide the relevant comparator for the purposes of Ms Tilley's allegation of age discrimination and whether she was treated less favourably by Ms Garbutt pursuant to s 66ZF(1)(b).
Submissions
Applicant's submissions
36 Ms Tilley submits through her counsel Mr Macdonald that the Bilbies group was for children aged three and a half years or more and that was the age for the cut-off between the first and second tier fees as set out in Table 1. The Bilbies group had a lower staff to child ratio than the Koalas group which was for children under three and a half years of age. Although Ms Garbutt occasionally assesses children younger than three and a half as being ready to move to the Bilbies group, once in the Bilbies group all children commenced the pre-school curriculum that took them up to year 1 level and they received the same level of care. This is clearly set out in the centre's brochure.
37 Mr Macdonald submits that for the purposes of the Act, children placed in the Bilbies group were to be regarded as being in the same circumstances or circumstances not materially different "with respect to each other and from the point of view of Harmony". On that basis,
(Page 13)
- Mr Macdonald argues that the relevant comparator is children who are not three (being Ms Tilley's daughter's age) and who are in the Bilbies group. Those children were being charged the lower rate of $53 solely because they were three and a half years old. Ms Tilley was being charged the higher rate of $60 for her daughter's attendance in the Bilbies group solely because she was not three and a half years old. All children were receiving the same service. Mr McDonald says that based on that comparator of other children in the group, Ms Tilley was discriminated against on the ground of her daughter's age.
Respondent's submissions
38 Ms Garbutt submits that all children in the centre are charged according to age regardless of what group they are in. She told the Tribunal that it was possible for a child who is older than three and a half to remain in the Koalas group and not move up to the Bilbies group in which case they would nonetheless be charged a fee according to their age. Children were and are moved to different groups only when they are intellectually and emotionally developed enough to cope with the higher group and when there is an available place in the higher group. She says a child is rarely moved on their birthday. Age ranges for groups are a guide and not determinative of fee structures.
39 Ms Garbutt submits that all the centre information clearly states that fees are charged according to age. She says that Ms Tilley was given information regarding this when she first attended a meeting at the centre. Ms Garbutt says Ms Tilley was fully aware that her child would continue to be charged the higher rate until she turned three and a half. Ms Garbutt submits that she has not discriminated against Ms Tilley on the grounds of her daughter's age.
40 Ms Garbutt also submits that the Commonwealth childcare benefit is paid based on age of the child and that the staffing ratios required under State legislation are based on children's age. At [19] of her statement to the Commissioner, Ms Garbutt says that under the Commonwealth regulatory scheme for child care benefits "centres are not permitted to charge different fees for different children in the same category which in Harmony's case has always been according to age". (The Tribunal was unable to locate this reference in the Commonwealth scheme). Therefore, Ms Garbutt says she was and is entitled to charge a fee based on the age of a child and that the groupings of children were and are an internal organisational matter.
(Page 14)
41 Ms Garbutt purports to rely on the matrix of legislation that surrounds the provision of child care services as requiring her to charge parents according to the age of the child and not according to the services provided by the centre and the staff ratio applicable to the group that the child is in. Ms Garbutt submits that all child care centres charge according to age and that if this Tribunal finds in favour of Ms Tilley then it will have a radical effect on the child care services industry and its ability to charge according to age.
Findings
42 Although there were some differences as to the facts in the various witness statements, the Tribunal found that these were not material and that credibility could be adequately assessed based on the witness statements as supported by other documentary evidence.
43 Ms Tilley must show that Ms Garbutt treated her "less favourably" on the ground of the age of her daughter than Ms Garbutt treated, or would treat, another person with a child at the centre in circumstances that are materially the same as Ms Tilley's daughter, but whose children are not of the same age as Ms Tilley's daughter.
44 The term "less favourably" necessarily involves another person by comparison with whom Ms Tilley can say her treatment was less favourable. This is referred to as the comparator.
45 That person must be in circumstances which are the same or not materially different to Ms Tilley's daughter. It is not necessary that the comparator be in identical circumstances but there must be a sufficient degree of similarity in the circumstances of Ms Tilley's daughter and the comparator to form the basis for a proper and appropriate comparison - Demar and Commissioner of Police [2006] WASAT 198 at page 13 and Turner and Maunsell Australia Pty Ltd [2006] WASAT 52 at pages 6 - 7.
46 The centre, and therefore Ms Garbutt, had in place at the relevant time a two-tier fee structure (Table 1). The first fee rate was for children up to three and half years old and that was $60 per day. For children three and a half years old and over the fee was $53 per day.
47 In February 2006, the repealed regulations applied to the provision of child care services. They were made under the Community Services Act 1972 (WA) (repealed Act) which provided for the licensing of child care centres at the relevant time. The repealed Act and the repealed
(Page 15)
- regulations were replaced on 10 August 2007 with a new scheme of licensing and regulation set out in the Children and Community Services Act2004 (WA) and the Children and Community Services (Child Care) Regulations 2006 (WA).
48 There was no requirement in the repealed Act or the repealed regulations that a centre charge according to the age grouping specified in the repealed regulations. This may have been the practice in child care centres but it was not a statutory requirement. The repealed regulations dealt comprehensively with the provision of child care services and covered programs and equipment to be provided and the type of premises that were required for the provision of child care services. Under the repealed regulations, the licensee was required to ensure that it provided a program of activities that was developmentally appropriate to the needs of the children and that included a balance of indoor and outdoor activities. The program was to be "designed to stimulate and provide for the development of each child's social, cultural, physical, emotional, intellectual, language and creative potential" (repealed reg 67). Ms Garbutt's practice of moving children at the centre into different groups reflected both the requirements of and the flexibility of the repealed regulations. It would appear that Ms Garbutt took advantage of the ability for a centre to have a number of children (30%) of a younger age cared for at lower staffing levels provided for children of an older age. Therefore, three year olds could be grouped and cared for by staff along with three and a half year olds, so long as no more than 30% of children in that group were below three and a half at any time.
49 Under the current legislative scheme, there is a mechanism by which required numbers of staff of appropriate qualifications can be determined dependent on the number of children in the centre. Under the current regulations, a licensee must ensure that the contact staff members on duty supervise the children in a manner sufficient to ensure their wellbeing and that is appropriate to their stage of development and the activity in which they are engaged (reg 23). Under reg 81(2) of the current regulations, when determining the ratio of staff members to children in the age ranges specified in the schedule to the regulations, the licensee may include:
"an enrolled child in an age range that is up to three months higher or three months lower than the child's actual age if the licensee -
(Page 16)
- (c) is satisfied on reasonable grounds it is developmentally appropriate for the child to be included in that age range; and
(d) is authorised in writing by the child's parent to include the child in that age range."
50 The current legislative scheme would appear to mirror Ms Garbutt's practice during the relevant period of promoting younger children into higher groups.
51 Whilst the Tribunal accepts that the division of the centre into different developmental groups reflects the intent of the legislation and the requirements of it for the centre to provide appropriate developmental levels of care for children, it does not legislatively impose a fee structure on the licensee or the centre.
52 Ms Garbutt submits that the parents of older children subsidise those children under two years old because the high staff to child ratio incurs greater cost which parents of babies could not afford. Therefore, for a child care centre, which is a business, to operate at a profit, it needs to charge parents of older children an amount greater than what the cost of the service is. It does this by how it structures its groups that children are placed in but always keeping within the ratios set by the relevant legislation. As indicated above, the repealed regulations would allow for Ms Tilley's daughter to have gone into a lower staffing level group as she was between three and three and a half years old and there was a six-month crossover allowed for in staff ratios at that time. The current legislation allows only for a three-month crossover between the three year age group and three and a half year age group.
53 When establishing a comparator, it is therefore necessary to look at the services that the centre provides. The service provided in the Bilbies group was the same for all the children in the Bilbies group regardless of their age. That means that children who were three and a half and over, whilst Ms Tilley's daughter was under three and a half, were provided with the same services as Ms Tilley's daughter and were therefore in circumstances that were not materially different from Ms Tilley's daughter. Ms Garbutt therefore was not entitled to charge Ms Tilley a different amount than she charged the other children in the Bilbies group, solely based on the age of Ms Tilley's daughter.
54 The Tribunal accepts that all of the parents realised and agreed that fees were charged based on the age of the child. However, this does not
(Page 17)
- render what is a discriminatory practice otherwise acceptable. To be acceptable that practice must be excused by an exception in the Act or be the subject of an exemption granted by the Tribunal under s 135 of the Act. For a child under three years of age, for whom the legislation requires a relatively high ratio of staff to children, s 66ZM of the Act may well apply as a rate needs to be charged based on the age of the child to ensure their health and safety. However, that would not allow a different rate to be charged for children of different ages who all received the same level of care as required by the ratios set out in the repealed regulations. Equally, s 66ZF may permit in some circumstances charging by the age of the child where it is necessary to do so in order to comply with the requirement of a statute in existence when that part of the Act came into operation (8 January 1993). However, Ms Garbutt has not been able to direct the Tribunal to any legislation that requires her to charge a three year old a different amount than she charges a three and a half year old who is in the same group receiving the same level of care and the same developmental curriculum according to the same staff ratios.
55 We therefore find that the relevant comparator is other children three and half and above who are in the Bilbies group. On this basis, Ms Garbutt discriminated against Ms Tilley when she charged her a different amount for the care of her daughter in the Bilbies group as that charge was based solely on the age of Ms Tilley's daughter.
Remedies
56 The Tribunal orders that Ms Garbutt pay to Ms Tilley the amount of $327 being an amount that Ms Tilley paid that was additional to what parents of children who were three and a half and over and in the Bilbies group paid.
57 However, the Tribunal is not convinced that Ms Tilley suffered any unusual amount of stress, hurt, humiliation and embarrassment directly caused by the overcharging and therefore does not award Ms Tilley general damages. The evidence put before the Tribunal was largely dependent on the claim that Ms Tilley could no longer drop off and pick up her daughter. At [44] of her witness statement, Ms Tilley says she "mostly did the drop offs and pick ups". At [6] of his witness statement, Mr Tilley says "I occasionally helped with pick ups and drop offs". Neither of these statements is correct. Mr and Ms Tilley go on in their statements to say that because of the hurt, humiliation and embarrassment that Ms Tilley felt, Mr Tilley had to assume the role of dropping off and picking up their daughter. They say this caused inconvenience to them.
(Page 18)
- The documentary evidence shows that there was no real change in the amount of times that Mr Tilley picked up and dropped off his daughter from the centre and that he continued dropping off and picking up his daughter as he had always done. In fact, during the relevant period, there was a slight increase in the number of times Ms Tilley dropped off or picked up her daughter.
Orders
58 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.
I certify that this and the preceding [58] paragraphs comprise the reasons for decision of the State Administrative Tribunal.
___________________________________
JUDGE J ECKERT, DEPUTY PRESIDENT
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