Heber v Glen Henney & Son Pty Ltd [2007] NSWADT 93

CITATION: Heber v Glen Henney & Son Pty Ltd [2007] NSWADT 93

DIVISION: Equal Opportunity Division

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

FILE NUMBER: 071021

HEARING DATES: 14 March 2007

SUBMISSIONS CLOSED: 5 April 2007

DATE OF DECISION: 19 April 2007

BEFORE: Hennessy N - Magistrate (Deputy President)

CATCHWORDS: Application for leave to proceed

MATTER FOR DECISION: Preliminary matter

LEGISLATION CITED : Anti-Discrimination Act 1977

CASES CITED: Xu v Sydney West Area Health Service, [2006] NSWADT 3

APPLICANT In person REPRESENTATION: RESPONDENT G Henney, agent

ORDERS: Leave is granted.

REASONS FOR DECISION Introduction 1 Mr Heber complained to the President of the Anti-Discrimination Board that his former employer, Glen Henney & Son Pty Ltd, had discriminated against him on the ground of his age. He is 60 years old and worked as a tele-marketer for Glen Henney & Son Pty Ltd for two weeks in October 2005. He says that Mr Henney made derogatory remarks about his age during the course of his employment. Some of the alleged remarks were, "what have you ever done, didley squat", "so, your date of birth stinks", "use the computer, old fool" and that he was "too old". Mr Heber also alleges that on 28 October 2005 his employment was terminated on the ground of his age. 2 Mr Henney denies that he made the remarks Mr Heber says that he made or that he dismissed Mr Heber. Mr Henney says that Mr Heber resigned after a decision was made to put him on an employee management program. According to Mr Henney, that decision was made because despite saying that he was computer literate, Mr Heber was unable to use a computer and required training. 3 The President of the Anti-Discrimination Board declined Mr Heber's complaint as lacking in substance. The President said that, taking Mr Heber's evidence at its highest, a complaint of age discrimination could not succeed. When the President declines a complaint on that ground, s 96 of the Anti-Discrimination Act 1977 (AD Act) requires the applicant to obtain the Tribunal's permission (or leave) before the complaint can go ahead. Mr Heber applied for leave and the application was heard on 14 March 2007. 4 Several preliminary matters need to be noted before determining Mr Heber's application. First, Mr Heber made it clear that he was complaining only of age discrimination despite the fact that his initial letter of complaint to the President of the ADB alleged discrimination on the ground of sexuality, race and appearance as well as age. Secondly, Mr Heber's complaint relates only to the way he was treated during the course of his employment and his allegation that he was dismissed. It does not relate to any dispute about wages. Mr Heber complained about the wages he was paid on termination to the Office of Industrial Relations but following investigation, that Office found no evidence to sustain claims of a breach of any NSW industrial law. Thirdly, at about the same time that Mr Heber lodged his complaint with the ADB, he also complained about the same matters to the Human Rights and Equal Opportunity Commission (HREOC). HREOC explained to Mr Heber that as he had already made a complaint of age discrimination to the ADB, he was not entitled to make the same complaint to HREOC: Age Discrimination Act 2004 (Cth). HREOC terminated Mr Heber's complaint of race discrimination. Approach to determining leave applications 5 In Xu v Sydney West Area Health Service, [2006] NSWADT 3 at [18], the Tribunal set out the approach to be taken to applications for leave under s 96 of the ADA: The discretion to have a complaint heard by the Tribunal when it has been declined as lacking in substance is unfettered and should not be constrained by rigid rules or criteria. Given the drafting history, the nature of the President's decision and the decisions of superior courts in comparable circumstances, leave should be granted when the applicant is able to show a substantial reason for leave being granted. A substantial reason may include the fact that the complaint has reasonable prospects of success. To have reasonable prospects of success a complaint of direct discrimination must include some direct evidence, or evidence from which an inference can be drawn, linking the alleged treatment with the ground of discrimination. Relevant legislation 6 If leave is granted, and this matter were to proceed to hearing, the onus would be on Mr Heber to establish that his former employer breached s 49ZYB(2) of the AD Act. That provision states that: (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. (3) This section does not apply to employment for the purposes of a private household. 7 Discrimination on the ground of age is defined in s 49ZYA. The relevant provision in s 49ZYA(1) which defines "direct" discrimination: (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 Reasoning and conclusion 8 The parties disagree fundamentally about what happened in the course of Mr Heber's employment. Mr Henney categorically denies that he made the statements attributed to him by Mr Heber and has provided a statutory declaration to that effect. Statutory declarations have also been provided by Mr Grasso and Mr Henney in relation to the discussions at a meeting on 28 October 2005 during which Mr Heber says his employment was terminated. Where there is a dispute about the facts, the usual approach in preliminary proceedings such as these is to take the applicant's evidence at its highest. If Mr Heber is able to prove his version of events, then he has an arguable case of age discrimination. 9 In those circumstances, Mr Heber's complaint has some prospects of success even though, in my view, there is some doubt about Mr Heber's credibility. That doubt is based on three matters. The first is the statutory declarations filed by employees of Glen Henney & Son Pty Ltd which contradict Mr Heber's version of events. The second is that Mr Heber told the Tribunal that if Glen Henney & Son Pty Ltd had paid him 3 weeks' wages, as he said they had promised to do, he would not have complained about age discrimination. That statement suggests that Mr Heber was not aggrieved because of any comments that Mr Henney made about his age or because his employment came to an end. Finally, Mr Heber did not complain to the ADB and HREOC until some seven months after leaving Glen Henney & Son Pty Ltd. He said that he was not aware of his rights until then. Nevertheless, the delay in complaining raises further doubts about Mr Heber's credibility. 10 Despite the concerns about Mr Heber's credibility, he should be given an opportunity to prove that his version of events is correct and that Glen Henney & Son Pty Ltd has breached the AD Act. Costs 11 Glen Henney & Son Pty Ltd applied for costs in relation to the application for leave. The general rule about costs is that each party is to pay his or her own costs, unless the Tribunal forms the opinion that there are circumstances that justify an order for costs: AD Act, s 110. I do not consider that the circumstances of this case justify an order for costs. Mr Heber has merely exercised his right to have his complaint referred to the Tribunal in circumstances where it has been declined by the President of the Anti-Discrimination Board: AD Act, s 93A. I have granted Mr Heber leave in order to give him an opportunity to prove his case. Glen Henney & Son Pty Ltd may make an application for costs following the Tribunal's decision, if they consider that there are sufficient grounds for doing so. Further directions 12 There appears to be no prospects that this matter will settle, so in order to deal with the application as quickly and inexpensively as possible, I make the following directions: (a) Mr Heber to file and serve any statements in support of his complaint including evidence of any loss or damage, within 21 days of the date of these reasons; (b) Glen Henney & Son Pty Ltd to file and serve any further statements in reply within 21 days of receiving Mr Heber's evidence; (c) the matter is set down for hearing for 1 day on 15 June 2007. Order 13 Leave is granted.