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 APPLICANT John James Wilson PARTIES: 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 APPLICANT REPRESENTATION: T Hemsley, solicitor RESPONDENT R Bromwich, barrister ORDERS: 1. The complaint is dismissed

REASONS FOR DECISION 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, Issues 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