Wilson v General Manager, Albury City Council

[2000] NSWADT 84

CITATION:	Wilson -v- General Manager, Albury City Council [2000] NSWADT 84
DIVISION:	Equal Opportunity Division
PARTIES:	APPLICANT John James Wilson RESPONDENT General Manager, Albury City Council
FILE NUMBER:	991087
HEARING DATES:	20/06/2000
SUBMISSIONS CLOSED:	06/20/2000
DATE OF DECISION:	06/30/2000
BEFORE:	Hennessy N (Deputy President); Nemeth de Bikal L - Member; Luger M - Member
APPLICATION:	Disability Discrimination - In work
MATTER FOR DECISION:	Principal matter
LEGISLATION CITED:	Anti-Discrimination Act 1977
CASES CITED:	Commissioner of Corrective Services -v- Aldridge [2000] NSWADTAP 5
REPRESENTATION:	APPLICANT T Hemsley, solicitor RESPONDENT R Bromwich, barrister
ORDERS:	1. The complaint is dismissed

Introduction

1 Mr Wilson alleges that his former employer, the Albury City Council (ACC), discriminated against him on the ground of his disability (a back injury) by not appointing him to the position of Roads Maintenance Ganger, when that position was advertised internally in 1996.

History of proceedings

2 Mr Wilson has worked as a labourer and truck driver with the ACC since 1979. He sustained a back injury in 1988. He continued to work but sustained a further injury in 1993. Following this injury he lodged a Workers’ Compensation Claim which was accepted. After a period of approximately three months off work, he was encouraged to train for a supervisory position which would be less physically demanding.

3 In 1993 following a 12 month course of study at New South Wales TAFE, Mr Wilson was awarded a Statement of Attainment in Supervision. In November 1993 the ACC gave Mr Wilson three months work as a relief ganger. This position involved supervision of other staff and was less physically demanding. Mr Wilson then resumed his duties as a truck driver. Mr Wilson applied for a position as a construction ganger in 1994 but was unsuccessful. During the period from July 1995 to September 1996, Mr Wilson worked as a relief ganger for a total of 60 days comprising periods of between 1 day and 1 week.

4 Mr Wilson sustained a further injury to his back in May 1995, and he underwent back surgery in January 1996. Later in 1996 the position of Roads Maintenance Ganger was advertised for internal applicants. Mr Wilson and Mr Smith were the only applicants for the job. Mr Smith was awarded the position.

5 On 1 April 1997 Mr Wilson lodged a complaint with the Anti-Discrimination Board alleging discrimination on the ground of disability in the ACC’s failure to appoint him to the position of Road Maintenance Ganger.

6 On 31 August 1998 the ACC responded to the complaint denying any breach of the Act and maintaining that Mr Smith had been appointed to the position on merit. Mr Wilson’s solicitors responded maintaining that Mr Wilson was the better applicant and that he should have been appointed to the position. After further contact by officers of the Anti-Discrimination Board, Mr Wilson’s solicitors wrote a further letter dated 16 April 1999.

7 On 11 June 1999 the President of the Anti-discrimination Board declined Mr Wilson’s complaint as “lacking in substance” under s 90(1) and 91(1) of the Act. Mr Wilson exercised his right to have the matter referred to this Tribunal. Mr Wilson is currently unemployed and undergoing rehabilitation.

Relevant legislation

8 The substantive provision on which Mr Wilson relies is s 49D of the Anti-Discrimination Act 1977 (the Act). In particular Mr Wilson relied on s 49D(1)(a) and s 49D(2)(b). That section states that:

(1) It is unlawful for an employer to discriminate against a person on the ground of disability:
(a) in the arrangements the employer makes for the purpose of determining who should be offered employment, or
(b) in determining who should be offered employment, or
(c) in the terms on which the employer offers employment.
(2) It is unlawful for an employer to discriminate against an employee on the ground of disability:
(a) in the terms or conditions of employment which the employer affords the employee, or
(b) by denying the employee access, or limiting the employee's access, to opportunities for promotion, transfer or training, or to any other benefits associated with employment, or
(c) by dismissing the employee, or
(d) by subjecting the employee to any other detriment.

9 Direct discrimination on the ground of disability is defined in s 49B as follows:

(1) A person (the perpetrator) discriminates against another person (the aggrieved person) on the ground of disability if, on the ground of the aggrieved person's disability or the disability 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 does not have that disability or who does not have such a relative or associate who has that disability,

10 Several issues which are not relevant to these proceedings were raised. They issues are:

• the circumstances in which the position of Road Maintenance Ganger became vacant;
• whether or not Mr Wilson was told that he would be given priority for future applications as a ganger after his unsuccessful application in 1994;
• whether Mr Wilson was given adequate notice of the interview;
• whether an “independent” person was appointed to the selection panel;

11 If any of these matters had been identified as separate acts of discrimination, they would have been relevant for the Tribunal to consider. However Mr Wilson’s solicitors made it clear that the only act of discrimination alleged by Mr Wilson was the failure of the ACC to appoint him as Roads Maintenance Ganger. Consequently while Mr Wilson may feel that the matters raised above disadvantaged him in relation to his application or were unfair, he did not allege that they were acts of discrimination on the ground of his disability.

12 The issues which are not in dispute were:

• that Mr Wilson has a disability within the meaning of that term in s 4 of the ADA; and
• the ACC was Mr Wilson’s employer.

13 The issues which are in dispute are whether:

• in failing to award Mr Wilson the position of Road Maintenance Ganger, the ACC treated Mr Wilson less favourably than in the same circumstances, or in circumstances which are not materially different, they would have treated a person who did not have a back injury;
• if so, was that treatment “on the ground of” Mr Wilson’s disability?
Evidence

14 According to the Position Description, the purpose of the Roads Maintenance Ganger was “Supervision of road maintenance works in the City of Albury, including the on-site supervision of staff, setting out and quality control as directed.” The essential qualifications were:

• a drivers licence Class 1A
• TAFE Certificate of Attainment in Supervision (if not held must be willing to qualify at next available course);
• OH&S course certificate.

15 Essential experience was listed as at least eight years relevant work experience. Specialist knowledge and skills were:

• competent at setting levels, string lines and works layout;
• ability to read plans and interpret diagrams;
• comprehensive understanding of construction techniques;
• ability to supervise staff;
• knowledge and understanding of the use of plant and equipment;
• overall understanding of the operations of the Engineering Services Section;
• good communication skills; and
• knowledge of all OH&S requirements and practices.

16 Mr Wilson’s application for the position stated that he was a truck driver and had been working for the ACC for 18 years. During that time he said he has been employed in all aspects of road construction maintenance and ancillary duties. He said he had been a temporary ganger for 3 months in 1993 and for further periods totalling 3 months since then. He mentioned that he had completed the TAFE Statement of Attainment in Supervision. None of these allegations were disputed.

17 Mr Smith’s application mentioned that he was acting in the advertised position at that time. He stated that he had experience in many local government projects, highway projects and contractors’ projects as a final trim grader operator. He also mentioned that he had worked with Wagga City Council as a final trim grader operator and “relief supervision.” He wrote that he was “currently studying supervisors Albury City Council”. In all Mr Smith said he “had 23 years of experience in local government works, road construction, road maintenance, levels, plans, traffic control and concrete.” He said he had driven dozers, backhoes, loaders, rollers, trucks, mobile cranes, sweepers and scrapers. He provided several favourable references. Again, none of this information was disputed.

18 Mr Wilson gave evidence that when he worked for three months as a ganger in 1993, he learnt how to take levels from plans. He said that when he became aware that the position of Roads Maintenance Ganger would become vacant, he expressed interest to John Ellis, who was his supervisor at the time. Mr Ellis said that both Mr Smith and Mr Wilson could have a period of 3 months each acting in the job before it was advertised. Mr Wilson said it was decided on a “toss of the coin” that Mr Smith would act in the position first. Mr Wilson conceded that he could have gone first if he had expressed a desire to do so. Mr Smith continued to act in the position until his appointment - a period of approximately 3 months and 3 weeks.

19 Mr Wilson says his interview took about half an hour and that the members of the panel were Mr Ward, Mr McLennan and John Ellis. Later that day he was told that his application had not been successful.

20 Mr Wilson did not provide references, because he had been working with the ACC for 18 years. As an internal applicant, he did not see the need for references. No-one raised with him the necessity for references.

21 Mr Wilson said that he believed he was better qualified for the position than Mr Smith and that the only reason he could see that he didn’t get the job was his disability. In relation to his qualifications for the position compared to those of Mr Smith, Mr Wilson said that Mr Smith had never put himself up to act as a relief ganger before and had not shown any interest in the position. Mr Wilson said he was basing his view of Mr Smith’s abilities on his work at the ACC and maintained that he hadn’t seen any performance from Mr Smith which indicated that he would be any better than he at the ganger’s job. He admitted that Mr Smith had more experience than he in construction techniques, but said that he had more experience supervising staff and reading levels off plans.

22 Apart from the question of who was on the interview panel (which is not relevant to any issue in dispute) none of the matters set out above were disputed.

23 Mr Wilson said that about a week after the interview he organised a meeting with Mr Bye (Human Resources Manager) and Mr Ward (Manager of Engineering Services) to discuss his future with the ACC. He expressed interest in a ganger’s position but was told that the ganger position had been decided. Neither Mr Bye nor Mr Ward made any other suggestions about positions which may be suitable for Mr Wilson. Mr Wilson said he was “virtually” told in that meeting by Mr Bye and Mr Ward that they didn’t think he could do the ganger’s job. Later he said he was “more or less” told that he was not suited to the ganger’s job due to his injuries.

24 Counsel for the ACC Mr Bromwich, questioned Mr Wilson about this meeting. Firstly he asked why the details of the conversation with Mr Bye and Mr Ward had not been mentioned in his letter of complaint to the Board dated 1 April 1997, or in his solicitor’s response to the ACC’s letter (dated 22 September 1998) or in a further letter to the Board dated 16 April 1999. Furthermore, in the 16 April 1999 letter, Mr Wilson’s solicitors wrote that:

We have spoken to our client, Mr Wilson, in relation to our discussions and advise that Mr Wilson does not recall any conversations where he was told by Council management that he was not being awarded the promotion due to his injuries.

25 Mr Wilson’s response to these questions was that he was led to believe that any statement about the reason for not getting the job had to be made at the time of the interview. He also said that paragraph 7 of the Points of Claim was not typed up the way he explained it. That paragraph states that: “The Complainant was advised at a meeting held with representatives of the Respondent that he had not been given the position as he was not suited for the position due to his injuries.” Mr Wilson agreed that the paragraph should have read: “The Complainant was advised at a meeting held with representatives of the Respondent that he was not suited to the position of ganger due to his injuries.”

26 Mr Bye is currently working as a Human Resources Manager with another organisation but until November 1997 he was the Human Resources Manager at ACC. He says he was on several interview panels during the workplace reform process but could not recall being on the interview panel for the ganger position for which Mr Wilson applied. He had no recollection of attending a meeting with Mr Ward and Mr Wilson about a week after the interview. He denied ever saying to Mr Wilson that the ganger position was not suitable because of his injuries and does not recall anyone else saying that to Mr Wilson in his presence.

27 Mr Bye does recall meeting with Mr Wilson in relation to his desire to become a ganger, his worker’s compensation claim, his rehabilitation programme and pain management.

28 In relation to documentation for vacant positions, Mr Bye said that the normal practice would be to create a file with all the paper work concerning that position attached. The front sheet would contain the basic details concerning the recruitment process. Sometimes notes taken in the interview would be included in the file, but normally there was no document reflecting the reasons for the panel’s decision to appoint a particular candidate. When the process was completed, the file would be closed and sent to the central records section of the ACC. Mr Bye clarified that a medical examination was not required for internal applicants.

29 Mr Ward has been the Manager of Engineering Services at ACC since 1991. He said that it was the ACC’s policy to select on merit and that this principle was contained in the ACC’s Employment Policy dated December 1992 and its Equal Opportunity Policy dated July 1996. The position of ganger was advertised and the interviews held on 4 November 1996. According to Mr Ward the panel consisted of Mr Ellis, Mr McLennan, Mr Bye and himself. He says he was certain Mr Bye was there. However Mr Ward has no specific recollection of the interview.

30 Each member of the panel was given a position description, a rating sheet, interview questions and copies of the applications. A series of questions was asked at the interview and comments were written on the evaluation sheets. Mr Ward said that he cannot find the file that has the collated responses and completed rating sheets for the interview for the ganger position. The panel formed the view that Mr Smith was the best qualified person for the job, based on merit.

31 Mr Ward did keep his own interview notes and maintained that if there was ever a file in relation to the selection of the Road Maintenance Ganger, it cannot be found. He did not complete any rating sheets.

32 In February 2000 Mr Ward prepared a document entitled “Selection of Road Maintenance Ganger, October 1996” in which he compared the qualifications and experience of Mr Smith and Mr Wilson. This document was prepared at the request of his solicitors. Mr Ward said that the document was prepared on the basis of the written applications of each candidate, not from the interview questions.

33 Mr Ward’s document recorded that Mr Smith had completed the ACC’s supervisor’s course which he said was “equivalent” to the TAFE course but it is not accredited. On questioning Mr Ward conceded that Mr Smith’s application disclosed that he had not completed the ACC’s course in November 1996.

34 In relation to years of experience, Mr Ward noted on the document he had prepared that Mr Wilson had “18 years as a truck driver with limited relevant experience” while Mr Smith had “23 years experience with local government, highway projects and contractors.” In relation to the requirements of setting out, read plans and construction techniques, Mr Ward recorded that Mr Wilson’s skills in relation to these three requirements were either minimal or limited while Mr Smith’s were extensive.

35 In relation to supervision Mr Ward recorded that while Mr Wilson had 3 months experience, Mr Smith had “extensive” experience. Mr Ward said that he discounted the period of supervision when Mr Wilson had relieved for between 1 and 5 days during 1995 and 1996. He said that only continuous experience was relevant. He also said that despite the fact that Mr Smith had only acted in the ganger’s job for three months, his position with other companies and with Wagga City Council as grader driver/leading hand involved the supervision of staff. The final trim grader operator is the key operator, who instructs staff and directs traffic on site.

36 In relation to the machinery each applicant had driven, Mr Ward said that while Mr Wilson had only been a truck driver, Mr Smith had driven graders, dozers, backhoes, FEL rollers and trucks. When questioned by Mr Hemsley, representing the complainant, Mr Ward conceded that Mr Wilson may have driven rollers but emphasised that he was predominantly a truck driver.

37 Mr Ward said he was aware of Mr Wilson’s back injuries but denied that his disability was a consideration in the selection process.

38 Mr Ward does not recall a meeting with Mr Wilson and Mr Bye shortly after the interview for the ganger’s job. He denied having ever said to Mr Wilson that he was not suitable for a ganger’s position because of his injuries.

39 Mr McLennan, Director of City Services at the ACC, recalls that Mr Bye, Mr Ward and he were on the selection panel for the ganger position. He said he does not have any notes of the interview and would have handed them back to Human Resources Branch. He had no recollection of the differences between Mr Smith and Mr Wilson but all the interviews he has been involved with at the ACC have been based on merit.

Findings of fact

40 Neither Mr Ward nor Mr Bye could recall a conversation they had with Mr Wilson about a week after the interview, although Mr Bye in particular remembers meeting with Mr Wilson on various issues to do with his desire to become a ganger, his worker’s compensation claim and his rehabilitation programme and pain management. Neither witness recalled telling Mr Wilson that he was not suited to working as a ganger because of his injuries.

41 Mr Wilson does recollect such a conversation with Mr Bye and Mr Ward. He said they “virtually” told him in that meeting with Mr Bye and Mr Ward that they didn’t think he could do the ganger’s job. Later he said he was “more or less” told that he was not suited to the ganger’s job due to his injuries.

42 It is relevant that Mr Wilson’s solicitors did not mention this alleged conversation until the matter was referred to the Tribunal, and at one stage they wrote that Mr Wilson does not recall any conversations where he was told by Council management that he was not being awarded the promotion due to his injuries.

43 We find that Mr Wilson genuinely gained the impression that Mr Bye and Mr Ward did not think he was suitable for work as a ganger because of his back injuries. However, on the basis of the evidence of Mr Bye and Mr Ward, which we accept, we find that neither of them ever told him, nor can it be inferred from the evidence, that a reason he was not given the position as ganger was because of his injuries.

Application of law and decision

44 The onus of proof is on the complainant to establish on the balance of probabilities that the ACC has directly discriminated against him on the ground of his disability pursuant to s 49D(1)(a) or s 49D(2)(b) of the Act. The question the Tribunal must ask itself is whether the ACC, on the ground of Mr Wilson’s disability, treated him less favourably than it treated or would have treated a person without that disability in the same circumstances, or in circumstances which are not materially different?

45 There is no direct evidence, nor can any inference be drawn on the basis of the evidence, that a reason that Mr Wilson was not awarded the position was because of his back injury. Mr Wilson may have had the impression that he would not be given a ganger’s position because of his back injury. However, the Tribunal prefers the evidence of Mr Bye and Mr Ward on this point, mainly because Mr Wilson said that he was “virtually” told or “more or less” told that he couldn’t do the ganger’s position. If Mr Ward or Mr Bye gave Mr Wilson any indication that he did not get the ganger’s position because of his back injury, Mr Wilson would have told his solicitors about it long before the Tribunal hearing. In these circumstances, we accept the evidence of Mr Bye and Mr Ward that the position was awarded on merit and that Mr Wilson’s disability was not a factor in the decision.

46 One aspect of this case deserves comment. Council was unable to locate the file relating to the recruitment of the ganger position. That file, if it contained all the relevant information including the reasons for the decision, would have been valuable in assisting the Tribunal to determine the precise basis for the decision to select Mr Smith and whether Mr Wilson’s disability was a factor in the decision. It is important for employers to maintain records of their decision making processes and conclusions so that employees can understand the basis for those decisions and any allegations of discrimination can be tested.

Orders

The complaint is dismissed.