Heber v Glen Henney & Son Pty Ltd (No.3) [2008] NSWADT 168

CITATION: Heber v Glen Henney & Son Pty Ltd (No.3) [2008] NSWADT 168

DIVISION: Equal Opportunity Division

APPLICANT Adrian Heber PARTIES: RESPONDENT Glen Henney & Son Pty Ltd

FILE NUMBER: 071021

HEARING DATES: 7 - 8 February 2008

SUBMISSIONS CLOSED: 8 February 2008

DATE OF DECISION: 11 June 2008

BEFORE: Connelly J - Judicial Member ; Hayes E - Non Judicial Member; O'Sullivan M - Non Judicial Member

CATCHWORDS: Age Discrimination - in work

MATTER FOR DECISION: Principal matter

LEGISLATION CITED : Administrative Decisions Tribunal Act 1997 Anti-Discrimination Act 1977

Commissioner of Corrective Services v Aldridge [2000] NSWADTAP 5 CASES CITED: Dutt v Central Coast Area Health Service [2002] NSWADT 133 Briginshaw v Briginshaw (1938) 60 CLR 336

APPLICANT In person REPRESENTATION: RESPONDENT G Grasso, agent

1. The application is dismissed 2. Costs are reserved ORDERS: 3. The parties are to file and serve their submissions in relation to costs as follows: (i) Respondent by 27 June 2008 (ii) Applicant by 18 July 2008 (iii) Respondent in reply by 1 August 2008.

REASONS FOR DECISION Introduction 1 Mr Heber was employed by Glen Henney & Son Pty Ltd as a telemarketer for a two week period in October 2005. Mr Heber says that because of his age he was subjected to offensive and inappropriate comments, was treated unfavourably and that on 28 October 2005 his employment was terminated. Mr Heber alleges discrimination in employment on the ground of age in breach of the Anti-Discrimination Act 1977 (the "Act"). 2 The respondent denies discriminating against Mr Heber on the basis of his age. It denies that it made any offensive or inappropriate comments, that Mr Heber was treated unfavourably or that it terminated Mr Heber's employment. The respondent says instead that Mr Heber resigned after being told that he would be put on an employee management program. The respondent had decided to put Mr Heber on this program because it had formed the view that Mr Heber needed assistance, in particular with using a computer. Evidence 3 All evidence tendered was taken into account but the following was of particular importance: - The Report from the President of the Anti-Discrimination Board including the complaint made by Adrian Heber to the Anti-Discrimination Board ("ADB") dated 30 May 2006; - Letter from Adrian Heber to ADB dated 17 November 2006; - Statutory Declaration of Adrian Heber dated 2 May 2007; - Statutory Declarations of Geoffrey Grasso dated 31 October 2006, 25 September 2006 and 14 December 2007; - Statutory Declarations of Glen Henney dated 31 October 2006 and 11 December 2007; - Statutory Declarations of Brian Cutajar dated 31 October 2006 and 13 December 2006; - Statutory Declaration of Anthony Edwards dated 31 October 2006; and - Oral evidence of Adrian Heber, Geoffrey Grasso, Glen Henney, Brian Cutajar and Anthony Edwards. Relevant law 4 Discrimination on the basis of age is defined in section 49ZYA(1) of the Act as follows: 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 a relative or associate who is that age or age group. 5 Section 49ZYB(2) of the Act says as follows: 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 detriment. 6 In order to prove direct discrimination Mr Heber must first prove that he has suffered less favourable treatment. If he can prove this then he must prove that this is because of his age. If differential treatment cannot be found then it is unnecessary to consider causation. ( Commissioner of Corrective Services v Aldridge [2000] NSWADTAP 5 ). 7 Mr Heber asserts that he has been treated less favourably than other employees of the respondent who are younger than him. At the hearing Mr Heber nominated a Paul Falzon as the comparator. Both parties agree that Mr Falzon is younger than Mr Heber but very little other information about Mr Falzon was provided. Mr Falzon did not give any evidence. 8 In the absence of relevant evidence about Mr Falzon's circumstances it is not appropriate to compare Mr Heber's treatment with that of Mr Falzon. We consider that the better approach is to treat the comparator as being hypothetical. Where the comparator is hypothetical the way s/he would be treated "cannot be assessed separately from asking what the ground or grounds of treatment of the applicant were" (Dutt v Central Coast Area Health Service [2002] NSWADT 133). We consider therefore that the preferable way to approach this case is to deal with both differential treatment and causation at the same time. 9 The Tribunal must be comfortably satisfied that Mr Heber has proven his case to the civil standard. (Briginshaw v Briginshaw (1938) 60 CLR 336). What is the treatment about which Mr Heber complains? 10 Having regard to section 49ZYB(2) of the Act and the assertions made by Mr Heber it would appear that he is relying on sub-section (c) – that he was dismissed or subject to other detriment. Was Mr Heber dismissed or did he resign? If he was dismissed was it because of his age? 11 The parties have previously agreed that being dismissed would be a detriment. However Mr Heber asserts that he was dismissed and the respondent asserts that he resigned. 12 Mr Heber provided three different versions of events in relation to the termination of his employment: (i) In his letter to the ADB dated 26 May 2006 Mr Heber says that in the second week of his employment he was kept back until all other employees had left. He was then dismissed by Mr Henney and Mr Grasso who told him that he would receive three weeks pay. Mr Heber said he accepted this but when he did not receive the promised money in his bank account the next working day he went into the respondent's offices where he was given 1 weeks pay only by Mr Henney's brother (Mr Cutajar) on the basis that he had resigned without giving one weeks notice. Mr Heber says this is untrue and asked the ADB for assistance in obtaining compensation. (ii) In Mr Heber's letter dated 17 November 2006 to the ADB he says that as he was leaving at about 5pm Mr Grasso said that Mr Henney and he wanted to speak to him. There was no one else in the office. Mr Grasso said "We are terminating you. Of course we will pay you out." Mr Heber says that he accepted this and assumed that he would be paid by electronic funds transfer the following Monday. (iii) In Mr Heber's statutory declaration dated 2 May 2007 he says that as he was about to leave on 28 October 2005 Mr Grasso asked him to stay and at approximately 5.00pm he had a meeting with Mr Grasso and Mr Henney. Mr Henney said to him that he was dismissing him because he felt that he was too old. Mr Grasso then said "We will pay you out of course". Mr Heber says that he confirmed that they would pay him three weeks wages by electronic funds transfer the following Monday. He then left at about 5.10pm. 13 At the hearing on 7 February 2008 Mr Heber was initially unable to clearly identify which of the above versions of events were correct. However he eventually said that he was sacked by Mr Henney who told him he was too old. 14 Mr Grasso, for the respondent, says in his statutory declarations dated 31 October 2006 and 14 December 2007, that a meeting was arranged with Mr Heber to discuss his work performance and to talk about ways of improving this. Mr Grasso says that both Mr Henney and he were present at a meeting with Mr Heber on 28 October 2005 at approximately 4.30pm. At the meeting Mr Heber said "I know you are going to sack me." Mr Henney said words to the effect of "No. We just want to discuss your work." Mr Grasso says that it was agreed at the meeting that Mr Heber would undertake an "employee management program" so that he could develop the skills necessary to do the job. The respondent was concerned that Mr Heber did not have the necessary computer skills to perform the job. At the end of the meeting Mr Grasso says that Mr Heber said, "Thank you, you have been very nice to me." 15 Mr Henney, for the respondent, in his statutory declaration dated 11 December 2007 says that the purpose of the meeting with Mr Heber on 28 October 2005 was to discuss Mr Heber's work deficiencies and to "explore avenues for improvement". Mr Henney said that in his view Mr Heber had misrepresented his computer and telephone skills and was otherwise not performing in accordance with expectations. Mr Henney said that the meeting took place at 4.30pm and provides the same account of the conversation as Mr Grasso above. Mr Henney says that Mr Heber did not turn up for work on the following Monday and that Mr Cutajar had asked him at about 8.45am if he knew where Mr Heber was. Mr Heber rang Mr Henney at approximately 10.15am and said that he had changed his mind and was not coming back. Mr Henney told Mr Heber that he had to give one weeks notice or have it deducted from his pay. Mr Heber said that the one week should be deducted from his pay. 16 Mr Cutajar, for the respondent, gave evidence in his statutory declaration that he had formed the view that Mr Heber was having difficulties in performing the job. In particular he was having difficulties in using the computer. As a result Mr Cutajar was assisting him with this. Mr Cutajar said that at 8.45 am on Monday 31 October 2005 he had asked Mr Henney where Mr Heber was but Mr Henney did not know. At approximately 10.00am Mr Henney told him that Mr Heber had called and said that he wasn't coming back. Mr Henney said that Mr Heber had failed to give one weeks notice of his termination and has elected to have one weeks wages deducted from his pay in lieu of notice. Mr Heber then attended the offices of the respondent on Tuesday 1 November 2005 where he said to Mr Cutajar as he was handed his wages "I'm not coming back and I'm not giving you one weeks notice." 17 Mr Grasso, Mr Henney and Mr Cutajar gave oral evidence consistent with their statutory declarations. Decision 18 Mr Heber's employment ended on 28 October 2005. We note that in his first two complaints to the ADB in June and November 2006 Mr Heber says that his employment was terminated but he makes no mention of being told it is because he is too old. Mr Heber appears to be concerned with obtaining wages to which he feels entitled. It is not until May 2007, in his statutory declaration filed with the Tribunal that he alleges that he was sacked because he was too old. 19 Mr Grasso and Mr Henney's evidence is that they were concerned about Mr Heber's ability to do his job and wanted to assist him in this regard. Mr Henney and Mr Cutajar both gave evidence of a conversation on Monday 31 October, which is consistent with the respondent's view that Mr Heber was still employed. 20 We simply do not accept that Mr Heber has proved that on 28 October 2008 his employment was terminated by the respondent. The overwhelming weight of evidence supports the version of events offered by the respondent. As he was not terminated, it is not necessary to determine whether any termination was discriminatory on the ground of age. Even if we are wrong and Mr Heber was terminated, it was not on the ground of his age. We do not accept that Mr Heber was told at the meeting on 28 October 2005 that he was too old. Mr Heber's first two complaints make no mention of any comments about age and appear to be motivated by a desire to be paid wages he believed were outstanding. There is no other evidence on which an inference could be drawn that if Mr Heber was terminated, one of the reasons was his age. Was Mr Heber subjected to any other detriment? If so was it on the ground of his age? 21 Mr Heber complains that he was subjected to hostile and intimidating glares and grimaces by Mr Henney every day and that on 19 October 2005 he was told he was "too old". He says this was repeated in words and by inference over the remaining period of his employment, for example "What have you ever done? Didley squat", "So your date of birth stinks", "Old queen", "Can't write, can't read", "Use the computer, old fool". Mr Heber said that Mr Henney would sometimes sneak up to him and stand next to him in a menacing and intimidatory manner. He says that he was placed in a corner of the office away from other workers and was not given adequate computer facilities or call lists. 22 Mr Henney denies the allegations made against him in relation to his conduct. In addition Mr Grasso, Mr Cutajar and Mr Edwards did not see or hear any of the alleged comments or behaviour. Mr Cutajar and Mr Edwards are of a similar age to Mr Heber. 23 The respondent's evidence was that Mr Heber worked in a small open plan office and contrary to his assertion that he was placed in a corner away from other workers his desk was next to Mr Edward's desk. There was only one printer, which had to be shared by all employees, but Mr Heber had his own computer. The respondent says that Mr Heber was given adequate call lists but that he made very few calls and no sales over the 2 week period he was employed. The respondent says that Mr Heber had inadequate computer skills and required assistance to perform the job. This assistance is acknowledged by Mr Heber. Decision 24 We simply do not accept to the civil standard that Mr Heber has proven to us that the comments and conduct of which he complains occurred. He has no witnesses and, with the exception of the comment allegedly made on 19 October 2005, he has not provided any evidence relating to dates, times or context. The respondent's three witnesses dispute and contradict Mr Heber's version of events. We therefore do not accept that Mr Heber has suffered a detriment at all, either as a result of his age or for any other reason. Costs 25 The respondent foreshadowed an application for costs. It asked that the question of costs be reserved and that a hearing date be set to deal with this issue separately. 26 Section 110 of the Act provides that each party is to pay its own costs unless the Tribunal is of the view that there are circumstances, which would justify the making of an order for costs. 27 The parties should be given an opportunity to make submissions in relation to the costs application. 28 Pursuant to section 76 of the Administrative Decisions Tribunal Act 1997 the Tribunal considers that it can adequately determine this matter on the basis of written submissions and in the absence of the parties. Orders The Tribunal makes the following orders: 1. The application is dismissed 2. Costs are reserved 3. The parties are to file and serve their submissions in relation to costs as follows: (i) Respondent by 27 June 2008 (ii) Applicant by 18 July 2008 (iii) Respondent in reply by 1 August 2008.