CITATION: Retallick v Nestlé Australia Ltd [2006] NSWADT 343 DIVISION: Equal Opportunity Division APPLICANT PARTIES: Peter Retallick RESPONDENT Nestlé Australia Ltd FILE NUMBER: 061023 HEARING DATES: 13/11/06 SUBMISSIONS CLOSED: 11/13/2006 DATE OF DECISION: 12/05/2006 BEFORE: Rice S - Judicial Member; Gill M - Non Judicial Member; Mooney L - Non Judicial Member CATCHWORDS: Age Discrimination - In work MATTER FOR DECISION: Principal matter LEGISLATION CITED : Anti-Discrimination Act 1977 APPLICANT In person REPRESENTATION: RESPONDENT R. F. Crow, Barrister ORDERS: 1. The complaint is dismissed; 2. If it seeks an order for costs the respondent will, by not later than 14 days from the date of this decision, file and serve each of an application, written arguments, and affidavit evidence if appropriate; 3. The applicant will, within 14 days of receiving from the respondent the documents referred to in Order 2, provide to the Tribunal and to the respondent any written submission he wishes to make in response to the application for costs. REASONS FOR DECISION Decision 1 For the reasons we give below, Mr Retallick's application is unsuccessful, and his complaint is dismissed. Background 2 Mr Peter Retallick holds a Master of Design degree, as well as a Graduate Diploma of Design and a Graduate Certificate of Design. He had worked as a web content producer and a print editor when, in 2005, he found himself out of work. 3 In late 2005 he contacted Mr Michael Graham, seeking advice on opportunities for employment in the design industry. Mr Graham is the managing director of the Australia branch of Landor Associates, a worldwide form of strategic brand consultants and designers. 4 Mr Graham conducted an "informational interview" with Mr Retallick where they discussed Mr Retallick's portfolio and career options. Mr Graham suggested that Mr Retallick speak to Mr Nelson Leong at Nestlé. Mr Retallick contacted Mr Leong and arranged to meet him. It was Mr Retallick's understanding that the meeting was in fact an interview for a position at Nestlé. 5 At their meeting on 16 November Mr Leong asked Mr Retallick his age, and described to Mr Retallick his view of a chronology of a designer's career, by reference to a designer's age. Mr Leong did not make an employment offer at the interview. 6 Two days later, on 18 November, the Anti-Discrimination Board received from Mr Retallick a complaint against Nestlé of discrimination on the ground of age. Complaint 7 Mr Retallick said in his complaint "I attended an interview with Nelson Leong . . . the position being discussed was Design Manager and during our conversation Mr Leong made the following references: 1. Asked a direct question about my age. 2. Said that the normal progression for graphic designers is as follows, "at 24 you are a master of your skills, at 26 you are a mid-weight graphic designer, at 28 you are a creative director and at 30 you are looking for out placement and possibly trying to set up your own business". 3. Said that graphic design of FMCG's (fast moving consumer goods) are a young person's job." 8 Describing in his complaint what remedy he sought, Mr Retallick made the relatively modest request that "At the very least I would like Mr Leong to be aware of his legal obligations". 9 The President of the Anti-Discrimination Board referred Mr Retallick's complaint to this Tribunal because he was "of the view that the nature of the complaint is such that it should be referred to the Tribunal". The President did not volunteer any reason for his forming that view and did not describe the relevant "nature of the complaint". 10 When the President does form that view, he is obliged by s93C of the Anti-Discrimination Act to refer the complaint as he did. That reason for referring a complaint is an alternative to other reasons set out in s93C: his being of the opinion that a complaint cannot be resolved by conciliation, his having endeavoured to resolve a complaint by conciliation without success, and his being satisfied that in the circumstances it is appropriate to accede to a request from all parties that the complaint be referred. We infer from the stated reasons for the President' referral that no attempt was made to conciliate the complaint. Once in the Tribunal the complaint was not the subject of mediation. Rather, an inquiry into the complaint was conducted within the relatively short period of 12 months after the conduct complained of. Area of activity 11 We know from his evidence to us that Mr Retallick was clear in his mind, at the time, that his meeting with Mr Leong was an interview for employment at Nestlé. In Mr Retallick's mind, his meeting with Mr Leong was so that Mr Leong could determine whether to offer him employment. How he came to the view that the meeting was effectively a job interview we discuss below. 12 The Anti-Discrimination Act proscribes discrimination only in certain areas of activity. An area of activity that is covered by the Anti-Discrimination Act – and the only one that is relevant to Mr Retallick's experience – is when a prospective employer determines who should be offered employment. Put in terms of section 49ZYB(1)(b) of the Anti-Discrimination Act, Mr Retallick's complaint is that Nestlé discriminated against him, on the ground of his age, in determining whether to offer him employment. Nestlé presumed to be liable for Mr Leong's conduct and Nestlé has not suggested that in the circumstances it should be otherwise. 13 Before looking at whether the things Mr Leong said and did amount to discrimination as defined by the Anti-Discrimination Act, Nestlé's first answer to the complaint is that there was in fact no employment on offer. Nestlé says that the meeting with Mr Leong was not a job interview but a professional counselling or information session. Nestlé says that the circumstances in which Mr Leong spoke and acted are not circumstances that are covered by the Anti-Discrimination Act. 14 We agree. On the basis of all the evidence we are satisfied Mr Leong was not interviewing Mr Retallick to consider whether to employ him, and that Mr Retallick misunderstood the nature of the meeting. What Mr Leong said and did he said and did in a discussion that did not take place in an area of activity covered by the Anti-Discrimination Act. We note that even if it did, we would be unlikely to be satisfied that Mr Leong's conduct was less favourable treatment, or that Mr Leong would have treated a younger person differently. 15 To decide whether the meeting was in fact a meeting about Nestlé's possibly employing Mr Retallick, we have had to reconcile competing accounts of what was said and done in preparation fore the meeting. Mr Retallick's evidence is that i. Mr Graham said to him "Nestlé are looking for design managers . . .". ii. in a telephone conversation to arrange the meeting he said to Mr Leong that Mr Graham had said that Nestlé might be looking for design managers and that Mr Leong said "Yes we are" or similar words. iii. in that telephone conversation Mr Leong asked him to send his resumé. iv. in his covering letter when sending the resumé to Mr Leong he wrote "As I mentioned Michael Graham from Landor suggested I should have a talk with you about design management roles at Nestlé". v. in their meeting Mr Leong said "we are looking for design managers". 16 Mr Graham's evidence is that i. Mr Retallick asked for a referral to "anyone else who could give me advice regarding career opportunities" and he said "Yes. Nelson Leong at Nestlé would be a good man to talk to. I don't know of any jobs available at Nestlé though". ii. he did not say the words Mr Retallick attributes to him. iii. at no time did he discuss with Mr Retallick the possibility of employment at Nestlé, or tell Mr Retallick that there was a job available at Nestlé. 17 Mr Leong's evidence is that i. on receiving a voicemail message from Mr Graham about the possibility of his seeing Mr Retallick he left a message for Mr Graham saying "We don't have a design position available for anyone, but I'll invite Mr Retallick in for a career counselling meeting". ii. in a telephone conversation to arrange the meeting he said to Mr Retallick "We don't have design mangement roles in Nestlé, however do send me your CV first before we meet. iii. in relation to his meeting with Mr Retallick he took no steps to initiate the processes or complete the forms necessary to comply with Nestlé's recruitment policy for new staff. iv. he did say to Mr Retallick "we are planning on looking at project management positions in the future . . . however it's still 'pie in the sky'". v. in the telephone conversation to arrange the meeting Mr Retallick did not say that Mr Graham had said that Nestlé might be looking for design managers, and he, Mr Leong, did not say "Yes we are" or similar words vi. in their meeting he did not say "we are looking for design managers". vii. Nestlé does not employ designers and did not in 2005. viii. Nestlé does not employ Design Managers and did not in 2005. ix. the only position at Nestlé in Australia that a person with a Master's Degree in Design could be suitable for is his own. 18 Ms Rachel Carpenter works in the human resources department of Nestlé. Her evidence is that: i. no employment position at Nestlé is created or filled without approval. ii. Mr Leong did not have authority to create or fill an employment position without approval. iii. in November 2005 there were no vacancies in the department at Nestlé where Mr Leong worked. iv. Nestlé has never had a position of Design Manager. 19 In addition to this evidence: i. Mr Graham sent to Mr Leong an email before the meeting to introduce Mr Retallick, saying "[he] might be suited to a design management type role. Could you spare him half an hour? It might be useful". ii. Mr Leong sent Mr Graham an email to report on the meeting, saying "I met Peter this morning and we spent an hour on his ambitions . . . I don't think he has enough (in fact none) FMCG to be applied here. But thank you for referring him. 20 Mr Graham did send a further email to Mr Leong after Mr Retallick had made his discrimination complaint. In that email Mr Graham explained his purpose in having referred Mr Retallick to Mr Leong. Because of the timing of that email it has very little relevance to the issue of whether Mr Retallick was referred to Nestlé for a job interview. 21 On the issue of whether Mr Retallick was referred to Nestlé for a job interview, the evidence of Mr Retallick is at odds with the evidence of Mr Graham, Mr Leong and Ms Carpenter. The evidence of Mr Graham, Mr Leong and Ms Carpenter is all to the same effect and is internally consistent. Aspects of their evidence – such as employment policies, and the non-existence of in-house designers at Nestlé – are independently verifiable, although we did not see such verification. 22 Mr Leong's evidence is that Nestlé does not employ designers or design managers; it contracts out its design and, unlike other companies, does not employ design managers to liaise with those contractors. Mr Graham's evidence is that he knew this to be so, at least for Sydney. In light of this it is highly improbable that either Mr Graham or Mr Leong would have held out to Mr Retallick that there was the prospect of employment. As well, no aspect of the meeting, as reported by either Mr Retallick or Mr Leong, reflected the usual components of a job interview: there was no discussion of a substantive position, of a job description, of terms and conditions, salary or starting date. 23 However, to accept that Nestlé in fact had no job to offer Mr Retallick, three aspects of the evidence have to be explained. First, how did Mr Retallick come to think that the meeting with Mr Leong did offer the prospect of employment? We accept Mr Retallick's evidence that that was in fact his belief. 24 In our view it is explained by a combination of two factors. The first is Mr Retallick's state of mind. In his evidence and submissions Mr Retallick impressed us as a person with a strong belief in – perhaps a passion for – issues in design, and a keenness to implement those ideas. As well he impressed us as being conscious of the fact that he was starting a new career late in life, unhappy with and frustrated by his immediately previous employment, and anxious about being able to find a job and make a career in design. His preparation for the meeting with Mr Leong was thorough and he demonstrated keen anticipation. He did as Mr Leong had asked beforehand and sent in his resumé, he attended the interview "dressed smartly" with a tie, and took with him his portfolio. 25 Mr Retallick misunderstanding of the nature of the meeting is consistent with his strong personal desire, his hope, that he would find a job. His own evidence to us was that he assumed that it was a job interview, and Mr Leong did nothing to disabuse him of that idea. Quite understandably, Mr Retallick heard things in a way that he wanted to hear them. 26 The second factor that made it possible for Mr Retallick to see the prospect of a job when there wasn't one – to assume he was going to a job interview – was that there were in his dealings with Mr Graham and Mr Leong some indicators that allowed his misperception to develop. Mr Retallick had started on the referral path to Mr Leong from an outplacement consultancy after he had been retrenched – all his interviews were with a view to finding work; he showed his portfolio to Mr Graham who suggested a design management role and referred him to Mr Leong; Mr Leong is a design manager; Mr Leong asked him to send his resumé; and language such as "talk to", and "have a talk to", was open to interpretation. 27 In short, the circumstances were such that Mr Retallick formed the mistaken view that he was seeing Mr Leong at Nestlé about possible employment in a design capacity. It is clear from the evidence that no such employment was possible, let alone on offer at that interview. 28 The second thing to be explained, if it is so that Mr Retallick was mistaken as to there being a job available, is why Mr Leong was not alerted to Mr Retallick's misapprehension when Mr Retallick referred, in his covering letter for his resumé, to "design management roles at Nestlé". Mr Leong says that he took that merely as a sign of enthusiasm from Mr Retallick. It appears from the evidence that, as Mr Retallick says, Mr Leong said during their meeting nothing to disabuse him of his belief. In fact, he said something that may have fed Mr Retallick's misapprehension: "We are planning on looking at project management positions in the future". That was said with the rider "we're currently piloting a test to support that future possibility. However it's still 'pie in the sky'", but it appears that Mr Retallick did not hear or take account of that qualification on the suggestion of future project management positions. 29 Having told Mr Retallick there were no positions available, knowing that in fact no design positions existed at Nestlé, and thinking that that he was seeing Mr Retallick for a professional guidance session, Mr Leong had no reason to take Mr Retallick's reference in his letter to "design management roles at Nestlé" as an indication that Mr Retallick thought he was attending for a job interview. 30 The third thing to be explained, if it is so that Mr Retallick was mistaken as to there being a job available, is why Mr Leong reported to Mr Graham on the meeting in the terms that he did. Mr Leong wrote "I don't think he [Mr Retallick] has enough (in fact none) FMCG to be applied here. But thank you for referring him". Mr Leong says that the comment reflected the hope he had held that Mr Retallick would present as a candidate for possible future vacancies. This is not entirely convincing. 31 Mr Leong says that there were (and are) no design positions at Nestlé, and that the only job Mr Retallick could be qualified for would be his own, Mr Leong's. His comment to Mr Graham is explained therefore as reflecting a hope he had held that Mr Retallick would present as a candidate for his own position in future. That is not at all obvious from the words he used, and in our view Mr Leong's reporting to Mr Graham on the meeting in the terms that he did sits awkwardly with there having been no future employment prospect open to Mr Retallick at the meeting. 32 Nevertheless, we are far from satisfied that the meeting between Mr Retallick and Mr Leong was a meeting to decide whether Mr Retallick should be offered employment. The very strong indications are that it was a professional discussion in which Mr Leong gave counsel and advice to Mr Retallick on his future. For the reasons we have given, Mr Retallick was understandably mistaken, and approached the meeting on the mistaken assumption that there was the prospect of employment. 33 It is, therefore, our view that the conduct Mr Retallick complains of did not occur in an area of activity referred to in the Anti-Discrimination Act, whether described in section 49ZYB(1)(b) or elsewhere. It follows that although we received evidence and submissions on the issues, we do not have jurisdiction to inquire into whatever it is that Mr Leong said and did, and whether it was discriminatory. 34 In his closing submissions Mr Retallick drew our attention to the terms of his complaint, and pointed out that all he had wanted was an explanation for what had happened. He says that he felt bad after the interview. He felt Mr Leong hadn't listened to him and hadn't taken an interest in his views on design. He felt that he hadn't been taken seriously, and this feeling was compounded when he learnt subsequently that Mr Graham's introductory email to Mr Leong was sent only the day before his interview with Mr Leong. 35 Mr Retallick said that he felt better having learnt, through the evidence filed for this inquiry, that there had in fact been an earlier exchange of messages between Mr Graham and Mr Leong concerning the proposed meeting, and he regretted that he had not known of that sooner. Decision 36 Because the conduct Mr Retallick complains of did not occur in an area of activity referred to in the Anti-Discrimination Act, we dismiss the complaint. Costs 37 Nestlé has asked us to reserve any decision in relation to costs, and to be given time to make submissions. We note the terms of s110 of the Anti-Discrimination Act and state our view at this stage, and subject to any submissions that Nestlé might make, that in this particular case there are no circumstances that justify our making an order as to costs. We have made orders for Nestlé's application if it intends seeking an order for costs.. ORDERS 1. The complaint is dismissed. 2. If it seeks an order for costs the respondent will, by not later than 14 days from the date of this decision, file and serve each of an application, written arguments, and affidavit evidence if appropriate. 3. The applicant will, within 14 days of receiving from the respondent the documents referred to in Order 2, provide to the Tribunal and to the respondent any written submission he wishes to make in response to the application for costs. DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated.