Plancke -v- Director General, Department of Education & Training [2001] NSWADT 137

CITATION: Plancke -v- Director General, Department of Education & Training [2001] NSWADT 137 DIVISION: Equal Opportunity Division APPLICANT Hendrik Plancke PARTIES: RESPONDENT Director General, Department of Education & Training FILE NUMBER: 011024 HEARING DATES: 07/08/2001 SUBMISSIONS CLOSED: 08/07/2001 DATE OF DECISION: 08/16/2001

BEFORE: Bartley R - Judicial Member; Alt M - Member; Edwards K - Member APPLICATION: Age Discrimination - In work MATTER FOR DECISION: Principal matter LEGISLATION CITED : Anti-Discrimination Act 1977 CASES CITED: APPLICANT REPRESENTATION: In person RESPONDENT S Butler, solicitor ORDERS: 1. Complaint dismissed; 2. No order for costs.

1 On 12 May 1998 the President of the Anti-Discrimination Board of New South Wales received a complaint from Hendrik Plancke (the Applicant) alleging discrimination on the ground of age in the area of employment. 2 The Applicant was employed by the Department of Education and training the initial complaint was made against the Department. However at a case conference, by consent, the Respondent was changed to 'the State of New South Wales'. 3 The complaint was made under section 49ZYA and 49ZYB of the Anti-Discrimination Act 1977. The only part of the sections relied on by the Applicant was section 49ZYB(2)[c]]. This section and subsection provided that: 'it is unlawful for an employer to discriminate against an employee on the ground of age.: (c) by …………….. subjecting the employee to any other detriment.' 4 The evidence showed that due to falling numbers at the Richmond High School where the Applicant had taught for 19 years pupil numbers had fallen to such an extent that three teachers had to be transferred from the Richmond School. 5 The Applicant was one of the three teachers 'nominated' for transfer. This transfer was termed a 'forced' transfer by the Applicant whilst the Respondent School termed it a 'nominated transfer'. 6 The Applicant in his original complaint to the anti-Discrimination Board and his evidence stated he was convinced his forced transfer from the Richmond school was due to his age and that he had been discriminated against because of his age. In support of this contention he said that the three people nominated for transfer were the oldest in their Departments and he was the oldest in his Department 7 The Applicant told the Tribunal that the reason the transfer was 'a detriment' to him was the result of a combination of factors. He said that, at the time he was 54 years of age, and there was little chance of getting a promotion. He hoped to finish his career in the position he was in, and stated: 'If you have been teaching in a school as I was, for 19 years, you are aware of all the resources that are available to you as a teacher. You know how the system operates. You know to whom you can go to for help and who to avoid. Basically you feel secure. It is your work home for 19 years. So that moving school, where you do not know anybody, and know nothing about resources, it [sic] was a very strong detriment, especially when you are that close to retirement' 8 At the time of the complaint, the Applicant was one month short of attaining 54 years of age and had taught at the Richmond High School for 18 years 9 The Applicant provided further information to the President of the Anti-Discrimination board on 28 May l998. Unfortunately the President did not take any action on the matter until 17 April 2000. The Department was not advised of his complaint until that date. 10 On 5 April 2001 the President referred the complaint to the Equal Opportunity Division of the Administrative Decisions Tribunal. 11 The file sent to the Tribunal by the President of the Anti-Discrimination Board was tendered by consent. This had been earlier agreed to at a case conference. This method saved considerable time and expense to each party as no affidavits were necessary. All witnesses gave their evidence viva voce 12 The Applicant, Mr Plancke, gave evidence. The Respondent called the Head Teacher of English, Mrs Barbara Stanners, and the Principal of the Richmond School at the time, Mr Kenneth Gill, to give evidence. 13 All of the witnesses agreed that it was due to the falling student numbers at Richmond High School that the number of teachers had to be reduced, in accordance with Departmental staffing formulae. 14 It was the Respondent's evidence that this was done in accordance with Departmental guidelines called 'Reductions in Staff Entitlements Procedures for the Nomination for Transfer of Teachers Not in Executive Positions'. 15 Whilst the Applicant was insistent in evidence in chief and in cross-examination of the Respondent's witnesses that the decision to nominate him was 'solely on the grounds of my age' the Respondent's witnesses were equally insistent the decision to transfer the Applicant was done in accordance with the curriculum procedure laid down by the Department in such cases. 16 There was no dispute that one teacher had to be nominated from those teaching English and/or History. Mr Plancke relied on the Secondary Staffing Variations Summary Form to assert that there was some reason other than curriculum reasons for nominating him as the person to be transferred. It was his assumption, on the basis of this form that there was a surplus in History. Therefore the teacher to be nominated should have been drawn from the History Faculty. The fact that he was subsequently listed as a History teacher in order to be the nominated transfer on this form, he stated, gave rise to the inference that he was being transferred for reasons unrelated to curriculum. Mr Gill gave evidence as follows: 'Historically English and History been shown as separate entities. [Indicating the Staff list] This one dated, 15 Dec 1998, shows English and History as separate. Mr Plancke's name is shown under History and had been shown there for a number of years. Why the name appears there - reflects what a person was teaching or what staff room they were in. That was something varying over time, and at that time, there was an effort to be more clear about who was teaching what. But Mr Plancke was listed under History, thus when the secondary schooling allocation form arrived I put him under History. By way of a fax, dated 9 March [refe Exhibit 5], I corrected that and put a circle around Mr P's name and asked them to note my error and transpose Mr Plancke's name into English.' 17 It is clear that the form, on its face, as written and uncorrected may have given rise to fears by the Applicant that his transfer was being done for reasons other than curriculum. However, once Mr Gill gave his evidence, especially of his quick correction of the error when he discovered it, the Tribunal does not agree with the inference drawn by the Applicant. The Tribunal accepts there was an error in the form but it was corrected as soon as detected by Mr. Gill. 18 There were 12 English teachers in the Faculty at the relevant time, one of which was the Head Teacher. All staff excluding the Head Teacher was considered for transfer. The Head Teacher prepared a matrix entitled 'English/History Staff Profiles'. This matrix was provided to the Principal. The Principal made his own decision about whom to nominate for transfer on the basis of this matrix as well as his own knowledge of the teachers and subsequent discussions with the Head Teacher. 19 The Applicant stated that the inference of age being the basis for his nomination could be drawn because the three teachers to be transferred, including himself, were all the oldest in their faculties. Further, when one of those originally nominated, a teacher in the Personal Development, Health and Physical Education Faculty, was successful in appealing the decision (due to the need to have a male staff member to supervise the boys' change rooms) the person nominated next was the second oldest in the faculty. Mr Gill denied 'age' was a factor in his decision as to which teachers should be transferred. He said he decided which teachers should be transferred by strict adherence to the guidelines of the Department. He also denied the guidelines would produce automatically that the teachers to be transferred would be the oldest. A copy of the guidelines was not tendered but the Applicant agreed with the oral summary of the guidelines provided to the Tribunal by Mr. Gill. 20 The Applicant also stated that this practice of nominating the oldest person in the faculty for 'forced transfer' had continued after his transfer. Specifically he alleged that Ms Anna Hughes, the next nominated transfer from the English Faculty, was then the oldest in the faculty. Mr Gill stated that Ms Hughes was not in fact a nominated transfer. Rather, after ongoing discussions in relation to problems she was having within Richmond High, she agreed to voluntarily transfer. Mr Gill produced a list of nominated transfers. On that list Ms Hughes is described as both a voluntary and a nominated transfer. The Tribunal considers Ms Hughes to be a nominated transfer even though she decided to 'volunteer' for a transfer, as in the words of Mr Gill, 'a change of schools would be of benefit'. 21 Mr Gill gave evidence to the Tribunal that his decision to nominate Mr Plancke was on curriculum grounds. He emphasised that the age of the Applicant was not a consideration. Mr Gill said that he was not aware of the age of the Applicant until after the Anti-Discrimination Board notified the Department of the complaint. 22 Under cross-examination by the Applicant, Mr Gill gave evidence that of the nine nominated transfers during his period as Principal, six were the oldest in their faculties at the time. It was Mr Plancke's submission that an inference could be drawn about this was because Mr Gill, 'consciously or sub-consciously is moving older people out of the school to keep young teachers there'. 23 During cross-examination, Mr Plancke questioned Mr Gill as follows: Mr Plancke: Do you accept the fact that it does seem that when you nominate a person you have tendency to go towards older members of department? Mr Gill: I would disagree. I do disagree that I, in my considerations, show some preference towards some older members of staff. It is important to follow the Department's guidelines and the clear criteria are curriculum requirements. In the process that I have explained, the initial considerations come from the Head Teacher, and from that, I would formulate a view. I would comment, that throughout the entire list, there would not be an exception where I have eventually nominated a person contrary to the information given to me, no exceptions. The only exception would be the PD Health and PE teacher where the information was incorrect regarding boys and girls taking PDH and PE. The guidelines is an up-front public process subject to appeal, and this occurred at three levels through myself, the Federation and the Staffing Unit of the Department, and through all of those processes I followed the guidelines and my decision was confirmed. I do not agree that I have a tendency to nominate the oldest. 24 Mr Plancke then asked Mr Gill the following questions. Mr Plancke: Do you believe that all the members of staff, because of their age are less likely to fulfil the curriculum requirements of the school? Mr Gill: I don't think so. 25 Counsel for the Respondent further questioned Mr Gill about this. Mr McVey: In your opinion do you believe that the guidelines would implicitly lead to choosing the oldest member of staff? Mr Gill: I don't believe so, as regardless of age all staff have the opportunity to develop experience and receive further training and development. In terms of a person's age, I don't see it as criteria that would influence curriculum guidelines. 26 The Tribunal has carefully considered all the evidence of Mr Gill and finds him a credible witness. In actual fact there was little dispute as to the facts in this case only really as to the correct inference to be drawn from those facts. 27 It accepts he did not discriminate against the Applicant because of his age 28 The Tribunal finds that Mr Plancke was not treated any differently than a person not of his age in the same circumstances, or circumstances not materially different. 29 Mr Plancke was nominated to be transferred on the basis of Departmental guidelines. 30 The Tribunal accepts that these guidelines did not require Mr Plancke to comply with a requirement or condition which a substantially higher proportion of person who are not of that age or age group comply or are able to comply. 31 Mr.Plancke said that whilst his complaint waited attention by the Ant-Discrimination Board for almost two years he was told not to advise the Department he had lodged a complaint. It seems a pity this was done as the matter may have resolved itself if dealt with closer to the events that happened. On the other hand the Applicant did appeal the decision to transfer him to the Principal and an outside appeals body, where he was represented by Teachers Federation Official, and was unsuccessful in both appeals. 32 The complaint is dismissed. No order as to costs.