Goyal v National Electricity Market Management Company Limited [2008] NSWADT 181

CITATION: Goyal v National Electricity Market Management Company Limited [2008] NSWADT 181

DIVISION: Equal Opportunity Division

APPLICANT Lajpat Goyal PARTIES: RESPONDENT National Electricity Market Management Company Limited

FILE NUMBER: 081022

HEARING DATES: 3 June 2008

SUBMISSIONS CLOSED: 3 June 2008

DATE OF DECISION: 23 June 2008

BEFORE: Hennessy N - Magistrate (Deputy President)

CATCHWORDS: Application for leave to proceed

MATTER FOR DECISION: Preliminary matter

LEGISLATION CITED : Anti-Discrimination Act 1977

Xu v Sydney West Area Health Service [2006] NSWADT 3 Commissioner of Corrective Services v Aldridge [2000] NSWADTAP 5 CASES CITED: Purvis v New South Wales (2003) 217 CLR 92 Spellson v George (1992) 26 NSWLR 666 Wickstead v Browne (1992) 30 NSWLR 1 Rana v University of South Australia [2004] FCA 559

APPLICANT In person REPRESENTATION: RESPONDENT T Saunders, barrister

ORDERS: 1. Leave is granted for Mr Goyal to proceed with the complaint of age discrimination 2. Leave is granted for Mr Goyal to proceed with the complaint of victimisation.

REASONS FOR DECISION Introduction 1 Mr Goyal is employed as a Testing Specialist with the National Electricity Market Management Company Limited (NEMMCO), a not-for-profit company which is the market operator of the national electricity market and the system operator of the national grid. In July 2006, Mr Goyal applied for a promotion to the position of Design Specialist. He says he met all the selection criteria for that position but was not given an interview. He complained to the Anti-Discrimination Board that his employer's failure to give him an interview constituted both age discrimination and victimisation. 2 The President of the Anti-Discrimination Board declined Mr Goyal's complaints as lacking in substance. When that happens, section 96 of the Anti-Discrimination Act 1977 (AD Act) requires an applicant to obtain the Tribunal's permission before the complaints can go ahead. Mr Goyal represented himself at the hearing. NEMMCO was represented by counsel, Mr Saunders. Approach to leave applications 3 In Xu v Sydney West Area Health Service [2006] NSWADT 3, the Tribunal set out its approach to determining applications for leave under section 96. I adopt those principles in relation to this case, especially the points made at [17] and [18]: 17 The legislature has not given the Tribunal the task of conducting a merits review of the President's decision. Consequently, it is not the Tribunal's task to determine whether the President has made the correct and preferable decision in declining the complaint as lacking in substance. Nor has the legislature given applicants a right to appeal to the Tribunal against the legality of the President's decision. It is not up to the Tribunal to determine whether or not the President has made an error of law. Nevertheless, as with appeals to the Court of Appeal and the Federal Court against interlocutory decisions, the legislature has given the Tribunal a gatekeeper role. That role is to ensure that a fair balance is struck between the interests of complainants in having their complaints heard and determined and the interests of respondents in not having to spend money defending unmeritorious claims. There is also a public interest in ensuring that unmeritorious complaints do not proceed to hearing. The legislature has placed the onus on the applicant to satisfy the Tribunal that the complaint should proceed notwithstanding the President's decision that it lacks substance. 18 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. 4 In summary, Mr Goyal needs to satisfy the Tribunal that there is a substantial reason for leave to be granted including that the complaint has reasonable prospects of success. In determining whether leave should be granted I have relied on the President's Report and the oral submissions of each of the parties. In keeping with the Tribunal's usual practice in relation to leave applications, no oral evidence was presented. Background to the complaints 5 Mr Goyal started working with NEMMCO as a Testing Specialist in 2001 when he was about 54 years old. In July 2004 he applied for a position as a Design Specialist. He was interviewed for that role but was not awarded the job. In March 2005 he applied for the position of Senior Tester. He was interviewed for that position in March 2005 but was again unsuccessful. On the 14th of December 2005, Mr Goyal complained to management that his failure to be offered the Senior Tester position constituted age discrimination. 6 Mr Goyal was told in a meeting on the 21st of December 2005 that his non technical skills were his weakness and that although he had the necessary technical skills to carry out his work, he was a challenge to work with, was unrealistic about his abilities, did not show initiative and needed to be followed up to ensure that his assigned tasks were completed. 7 In response to his complaint of discrimination, the Managing Director, Mr Les Hosking, said that after reviewing extensive information relating to the interview process, the skills and abilities of the preferred candidate and other relevant information, he did not consider that Mr Goyal had been discriminated against on the ground of his age. Mr Hosking went on to say that "the primary area of differentiation between you and the successful applicant related to non technical elements such as communication and team work." Mr Hosking then offered Mr Goyal assistance from the Employee Assistance Program and said that NEMMCO was committed to working with him to enhance the communication skills and other competencies that were highlighted as opportunities for development. 8 When Mr Goyal applied for the Design Specialist position again in 2006, he was not interviewed for that position. Mr Wormald said that he did not interview Mr Goyal based on the content of his application. Mr Wormald's assessment of his application was that: Lajpat Goyal has not demonstrated any ability, knowledge or interest in the business analysis of dispatch and pricing projects, or the NEM generally. He has neither claimed in his application nor demonstrated in his current position any ability for documentation of requirements or report writing. 9 When he asked NEMMCO to provide him with the reasons in writing, he was told by e-mail on the 14th of July 2006 that " the reason that you have not been successful in proceeding to the next stage of the recruitment process is that you have not demonstrated the necessary skills compared to the requirements described in the position description. The required skills that were said not to have been demonstrated were: a) business analysis skills with respect to dispatch and pricing projects and the National Electricity Market (NEM) generally; b) business requirements documentation; c) well-developed oral and written communication skills; and d) ability to understand and clearly communicate complex concepts and issues to a range of stakeholders with diverse backgrounds. 10 According to Mr Goyal, his resume made it clear that he met each of these requirements. In particular Mr Goyal said that his previous experience of more than 12 years in software development meant that he was well qualified for the position. He also referred to a statement of service from NSW Health where he had worked as an analyst programmer from 1988 to 1992. Mr Goyal said that while he did not address each criterion in the position description separately in his application it was clear from the nature and extent of his previous experience that he had the communication skills necessary to be a Design Specialist. 11 The successful candidates for each position and the reasons NEMMCO gave for their appointment were as follows: Successful candidate 1 – In her previous position as a Settlements Analyst, she was an achiever and had demonstrated: a) impressive skills in spreadsheet analysis and automation; b) capability of working with large databases, preparing testing documentation and requirements descriptions; c) a quick learner, a good eye for detail and an inquiring mind, asking intelligent questions to help her achieve her testing and developmental goals; d) a capacity for getting the job done. Successful candidate 2 - In her previous position as a Power System Operations Engineer, she has general power system operations experience, bringing a much-needed set of skills to the team, and her previous manager spoke very highly of her. 12 NEMMCO said, in summary that while Mr Goyal's technical skills were good, he lacked the necessary communication skills to do the job. Furthermore, even if Mr Goyal had good communication skills he was not the best candidate for the job. As several of the criteria for the position involved oral and written communication skills, Mr Goyal was not selected for interview. 13 In relation to the victimisation complaint Mr Goyal said that had he not complained of discrimination in December 2006, he would have been granted an interview for the position. However, according to NEMMCO, none of the staff involved in the recruitment process for the position of Design Specialist was associated at any stage with Mr Goyal's recruitment for the position of Senior Tester. That is because the two positions were in different groups. Furthermore, NEMMCO says that when Mr Goyal met with Mr Gillett and Ms Young to discuss his application and his performance review on the 11th of July 2006, he did not suggest that he had been victimised. President's reasons for declining complaint 14 The reasons the President gave for declining Mr Goyal's complaints as lacking in substance were that: Other than an allegation the complainant has not provided any specific information demonstrating that he has been treated less favourably than a person of a different age would have been treated in the same or similar circumstances. Mr Goyal has not provided any information that supports his allegation that his complaint of age discrimination in December 2005 was the reason for him not being called to interview in June 2006. The respondent has provided specific information supporting their reason for not granting Mr Goyal an interview, which are not in any way connected to his age or his complaint of age discrimination. Age discrimination complaint 15 If leave is granted, and this matter proceeds to hearing, the onus would be on Mr Goyal to establish that NEMMCO breached section 49ZYB(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. 16 Discrimination on the ground of age is defined in section 49ZYA. The relevant provision in section 49ZYA(1) which defines "direct" discrimination is as follows: (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 17 What has to be proved. The initial question that a Tribunal hearing this matter would have to determine is whether the decision not to give Mr Goyal an interview for the Design Specialist position in 2006 limited his access to an opportunity for promotion and/or amounts to a detriment within the meaning of that term in section 49ZYB(2)(c). The remaining issues would be whether or not NEMMCO treated Mr Goyal less favourably from the way they treated or would have treated a younger person and whether one of the reasons for that treatment was Mr Goyal's age. The first issue is known as the differential treatment requirement and the second issue is known as the causation requirement: Commissioner of Corrective Services v Aldridge [2000] NSWADTAP 5. 18 Differential treatment requirement. The first step when applying the differential treatment requirement is to identify the objective features or circumstances attending the treatment given to the Mr Goyal: Purvis v New South Wales (2003) 217 CLR 92. Those circumstances include Mr Goyal's experience, qualifications and skills. The question then, is whether MEMMCO gave or would have given interviews to younger applicants who had the same or similar qualifications, experience and skills as Mr Goyal. It is unlikely that there was an actual person in that situation, so the Tribunal would have to answer that question in relation to a hypothetical person. 19 Causation. The second element of discrimination is causation. The causation requirement is met as long as one of the reasons for the treatment (whether or not it is the dominant or substantial reason) is the person's age: AD Act, section 4B. The causation requirement as set out by the majority in Purvis v New South Wales (2003) 217 CLR 92 at 163 when interpreting similar provisions in the Disability Discrimination Act 1992 (Cth), was expressed as follows: [w]hy was the aggrieved person treated as he or she was? If the aggrieved person was treated less favourably was it 'because of', 'by reason of', that person's disability? Motive, purpose, effect may all bear on that question. But it would be a mistake to treat those words as substitutes for the statutory expression 'because of' 20 The AD Act uses the words "on the ground of", rather than "because of" but no different meaning is intended. The evidence and assertions on which Mr Goyal relies to establish that at least one of the reasons for his failure to be interviewed was his age can be summarised as follows: (i) he met all the selection criteria for the job; (ii) he has held more senior positions than the Design Specialist position in government agencies; (iii) he has had relevant experience in previous positions; (iv) prior to applying for the position his development plan did not include training to improve his communication skills; (v) at a meeting following his unsuccessful application for the position of Senior Tester he was told that his "good qualities/demonstrated behaviours" included Leadership that is supervision, coaching; Management that is organisational change/project management; Personal that is creativity, management, maturity. 21 Mr Goyal conceded that NEMMCO has promoted people in his age group but did not consider that to be relevant to the question of whether NEMMCO had discriminated against him on the ground of his age. 22 NEMMCO's evidence and submissions in response to Mr Goyal's complaint can be summarised as follows: (i) NEMMCO employs 246 employees who range in age from 20.8 years to 69.9 years, with the average age being 42.5; (ii) NEMMCO was in a good position after six years of employment to assess Mr Goyal's strengths and weaknesses; (iii) Mr Goyal's performance rating for the period from 2004 to 2007 ranged between 3.75 and 4.35 out of seven. A score of 3 denotes satisfactory performance and a score of 4 denotes good performance. Scores of 5, 6 and 7 denote very good performance, outstanding performance and exceptional performance respectively; (iv) Mr Goyal was about 54 years of age when recruited; and (v) medical evidence from a psychiatrist may explain Mr Goyal's disproportionate reaction to being refused an interview. 23 Even taking Mr Goyal's evidence at its highest, NEMMCO submitted that he has no prospect of success in his claims of age discrimination because there is no direct evidence, nor any evidence from which an inference can be drawn, linking his failure to be interviewed with his age. 24 Conclusion. It is not generally appropriate for the Tribunal to refuse leave where there is a serious question of fact to be determined or where a serious question of credit is involved: Spellson v George (1992) 26 NSWLR 666. In particular, if factual issues are likely to be affected by evidence in the possession of the respondent, that may mean that is appropriate to give leave. Material in summonsed documents or answers on cross examination may lead to the proof of factual matters about which the applicant has no direct evidence: Wickstead v Browne (1992) 30 NSWLR 1. It is not incumbent on a complainant to produce all of the relevant evidence in a leave application. If that were the obligation, the hearing of the application would almost become the trial: Rana v University of South Australia [2004] FCA 559 Lander J at [73]. 25 On the basis of the evidence available at the moment, it is unlikely that Mr Goyal will be able to substantiate his complaint of age discrimination. However, that is not the test that the Tribunal must apply at this stage of the proceedings. There may be more evidence available including details about the other applicants who were interviewed for the position. That evidence may or may not support Mr Goyal's case. None of the evidence currently before the Tribunal has been tested. In my view, while this case is borderline, there is a substantial reason for leave to be granted. The reason is that it cannot be said on the basis of the evidence on hand and evidence which may become available, that the complaint has no reasonable prospects of success. Complaint of victimisation 26 If leave is granted, and the complaint of victimisation were to proceed to hearing, the onus would be on Mr Goyal to establish that NEMMCO breached section 50: (1) It is unlawful for a person ("the discriminator") to subject another person ("the person victimised") to any detriment in any circumstances on the ground that the person victimised has: (c) alleged that the discriminator or any other person has committed an act which, whether or not the allegation so states, would amount to a contravention of this Act, or or by reason that the discriminator knows that the person victimised intends to do any of those things, or suspects that the person victimised has done, or intends to do, any of them. (2) Subsection (1) does not apply to the subjecting of a person to a detriment by reason of an allegation made by the person if the allegation was false and not made in good faith. 27 What has to be proved? In order to substantiate a complaint of victimisation, Mr Goyal would have to prove that: a) he alleged that NEMMCO had discriminated against him in breach of the AD Act ; b) he was subjected to a detriment; c) the detriment was on the ground of his discrimination complaint. 28 Allegations of discrimination. On the 14th of December 2005, Mr Goyal complained to management that his failure to be offered the Senior Tester position constituted age discrimination. 29 Detriment. The detriment which Mr Goyal says he has suffered was being refused an interview for the position of Design Specialist position in 2006. 30 Causation. Mr Goyal says that a reason for being refused an interview was the fact that he made the earlier complaint. NEMMCO's response is that none of the staff involved in the recruitment process for the position of Design Specialist was associated at any stage with Mr Goyal's recruitment for the position of Senior Tester. According to NEMMCO the allegation that he victimised Mr Goyal by not granting him an interview for the position of Design Specialist in the Market Operations Group by reason of his representations to Mr Hosking that he had been previously discriminated against on the ground of age, is without factual foundation. 31 Conclusion. If NEMMCO's assertion that those involved in deciding whether to interview Mr Goyal for the Design Specialist position were not aware of his previous complaint of discrimination is correct then it is unlikely that Mr Goyal will be able to substantiate his complaint. Nevertheless, since Mr Goyal was interviewed for previous positions, but was not interviewed after he made a complaint, it cannot be said that this complaint has no reasonable prospects of success. For that reason leave is granted. Orders 1. Leave is granted for Mr Goyal to proceed with the complaint of age discrimination 2. Leave is granted for Mr Goyal to proceed with the complaint of victimisation.