Heber v Glen Henney & Son Pty Ltd (No 2) [2007] NSWADT 230

CITATION: Heber v Glen Henney & Son Pty Ltd (No 2) [2007] NSWADT 230

DIVISION: Equal Opportunity Division

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

FILE NUMBER: 071021

HEARING DATES: 15 June 2007

SUBMISSIONS CLOSED: 15 June 2007

DATE OF DECISION: 2 October 2007

BEFORE: Needham J SC - Deputy President

CATCHWORDS: Dismissal of complaint - frivolous, vexatious, misconceived or lacking in substance

MATTER FOR DECISION: Preliminary matter

LEGISLATION CITED : Administrative Decisions Tribunal Act 1997 Anti-Discrimination Act 1977

Briginshaw v Briginshaw (1938) 60 CLR 336 Commissioner of Corrective Services v Aldridge [2000] NSWADTAP 5 Dutt v Central Coast Area Health Service [2002] NSWADT 133 CASES CITED: Fricke v Corbett Research P/L [2004] NSWADT 128 Han v. NSW Department of Health [2006] NSWADT 113 Heber v. Glen Henney & Son Pty Ltd [2007] NSWADT 93 Razaghi v. Director General, Department of Health [2006] NSWADTAP 33 Seltsam Pty Ltd v. McGuinness (2000) 49 NSWLR 262

APPLICANT In person REPRESENTATION: RESPONDENT G Grasso,agent

ORDERS: Application for dismissal dismissed. The matter is listed for a case conference on Wednesday, 14 November 2007 at 3.15pm to fix a date for hearing.

REASONS FOR DECISION 1 On 30 May 2006 Mr Heber ("the applicant"), complained to the Anti-Discrimination Board that he had been discriminated against by his former employer, Glen Henney and Son Pty Ltd ("the respondent"). The complaint alleged race, sexuality, appearance and age discrimination over a period of 17 October 2005 to 28 October 2005. 2 On 2 February 2007, the President declined the complaint as lacking in substance. The applicant sought his matter to be referred to the Administrative Decisions Tribunal pursuant to s 93A of the Anti-Discrimination Act 1977. The matter was referred on 22 February 2007. 3 As required by s 96 of the Anti-Discrimination Act, the applicant needed the leave of the Tribunal to proceed with his complaint. Mr Heber brought an application for leave which was heard by Deputy President Magistrate Hennessy on 5 April 2007. Leave was granted and reasons for that leave handed down by her Honour on 19 April 2007. 4 In her decision, Her Honour Magistrate Hennessy said:- "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. " (see Heber v. Glen Henney & Son Pty Ltd [2007] NSWADT 93) 5 Subsequently, the matter was listed for hearing before me on 15 June 2007. Prior to that date, the matter was listed and the respondent indicated that it wished to make an application for dismissal of the hearing on the basis that it lacked substance and was vexatious. 6 Mr Heber had not been notified of this application. 7 I made directions that the hearing date be vacated, that the matter be listed for hearing of dismissal proceedings on 15 June 2007 and that submissions for each side be served in relation to the dismissal aspect. Those directions were, in substance, generally complied with. 8 While technically Mr Heber was the respondent to the dismissal application, and Glen Henney and Son Pty Ltd the applicant, I will continue to refer to the parties either by their name or by their status as applicant or respondent to the substantive proceedings rather than the application for dismissal. Relevant Legislation 9 The legislation relied upon by the respondent in seeking dismissal of the proceedings was as follows:- "102 Tribunal may dismiss complaint The Tribunal may, at any stage in proceedings relating to a complaint, dismiss the whole or any part of the complaint on a ground on which the President may decline the whole or any part of a complaint under section 92 (1) (a) (i) or (ii) or (b)." 10 Sections 92(1)(a)(i) and (ii), and 92(1)(b) provide as follows:- (1) If at any stage of the President's investigation of a complaint: (a) the President is satisfied that: (i) the complaint, or part of the complaint, is frivolous, vexatious, misconceived or lacking in substance, or (ii) the conduct alleged, or part of the conduct alleged, if proven, would not disclose the contravention of a provision of this Act or the regulations, or … (b) the President is satisfied that for any other reason no further action should be taken in respect of the complaint, or part of the complaint, the President may, by notice in writing addressed to the complainant, decline the complaint or part of the complaint.". 11 While this matter was ready for hearing, it is clear that the Tribunal has the power to dismiss the proceedings at any stage. It was indicated to the respondent that it may be more cost-effective to run the hearing rather than (possibly) the application for dismissal followed by a hearing if the application were unsuccessful, but the respondent chose to continue as set out above. Mr Heber's Complaint 12 Mr Heber's complaint to this Tribunal was that he was discriminated against on the basis of his age. The complaints of race discrimination, sexuality and appearance which were made to the President of the Anti-Discrimination Board were not proceeded with. 13 Mr Heber alleged direct discrimination on the grounds of age, which is defined in s 49ZYA(1)(a) of the Anti-Discrimination Act as follows:- "49ZYA What constitutes discrimination on the ground of age (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 ..." 14 Section 49ZYB(2) of the Anti-Discrimination Act provides:- "49ZYB Discrimination against applicants and employees … (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." 15 Mr Heber was dismissed from his employment. It is not contested that his dismissal was a detriment for the purposes of sub-s 49ZYB(2)(c). 16 Mr Heber relied upon a Statutory Declaration which set forth in detail his allegations of discrimination on the basis of age by various employees and agents of the respondent. He also tendered a number of other documents which he says show that he has a case to take to hearing which should not be dismissed at this stage of the proceedings. 17 Mr Heber commenced employment with the respondent on 17 October 2005 as a telephone canvasser on a full-time basis. He says he was "dismissed without warning" on 28 October 2005. He says that the dismissal was on the basis of his age and constituted unlawful discrimination within the meaning of the sections cited above of the Anti-Discrimination Act. 18 Mr Heber relies on the fact that Mr Henney, a principal of the respondent, told him that he was "too old". In his statutory declaration, dated 2 May 2007 and which became Exhibit D2 in the application, he gave details of the words used by Mr Henney and said that "This was repeated in various forms both in so many words and by inference over the entire remaining period of my employment". 19 It is safe to say that the respondent denies the allegations of the words alleged, denies that there was any connection between Mr Heber's age (he is 60) and his dismissal, and denies that there was any ulterior motive in dismissing Mr Heber. The submissions for the respondent on dismissal and consideration of the application 20 The respondent submits that, despite the factual disputes, the complaint should be dismissed. This is despite the the Tribunal's well-established approach in such matters to take the Applicant's case at its highest and determine whether, when taken at its highest, it could possibly substantiate a complaint or disclose a contravention of a provision of the ADA. As stated by the Tribunal in Fricke v Corbett Research P/L [2004] NSWADT 128:- "The standard of satisfaction for an … application [for dismissal] is quite high. The Tribunal must be satisfied in effect that the complainant has no chance of succeeding on the evidence as set out before it. It is not appropriate to find that discrimination has taken place on the mere assertion by the complainant that it is so and the absence of evidence to that effect. The complainant must, to establish the existence of discrimination, establish objective facts from which to infer the other facts which he sought to establish (at para. 20). The Tribunal approaches its role by seeing whether the facts as stated by a complainant at their highest show that there may be grounds on which to decide that the complaint either ought be dismissed or alternatively, permitted to proceed to a full hearing, in which case the respondent's evidence will be called." 21 The respondent points to a number of matters which would go to the strength and acceptability of Mr Heber's evidence; for example, a lack of context of the words alleged to have been said, the omission of dates and times, and in some cases, the maker of the comments. These are matters seek to diminish the applicant's case; it is not appropriate to take them into account when the Tribunal must take the applicant's case "at it's highest". In other words, the allegations of the applicant being "too old" must be accepted for the purposes of this dismissal hearing and, while the Tribunal notes that the matters pointed to by the respondent would most likely lessen the impact of the evidence, that is a matter which needs to be considered by a full Tribunal with the benefit of cross-examination and of seeing the parties alleged to have made those comments in person in the witness box. 22 The respondent points to the onus of proof as being laid upon the Applicant. While this is true, it again does not arise in the context of a dismissal application, for the reasons set out above and in Fricke's case. The standard of proof is that of "comfortable satisfaction" as set out in Briginshaw v Briginshaw (1938) 60 CLR 336 - a matter which is of limited relevance when the Tribunal must accept the facts alleged by the applicant "at their highest". 23 The respondent goes on to submit that the "four vague comments about age", if accepted, as they must be for this application, are not demonstrated to constitute discrimination as they are not necessarily linked to the detriment suffered, nor has he shown that he was treated "less favourably or differently to persons not of that age group". The respondent points to the lack of a comparator as fatal to the complaint. 24 The Appeal Panel in Commissioner of Corrective Services v Aldridge [2000] NSWADTAP 5 held that there are two key components to a successful allegation of direct discrimination. The first is differential treatment, and the second is causation. Differential treatment should be considered first and if there is no differential treatment then it is unnecessary to consider causation. 25 The route to be taken by the Tribunal, then, is firstly to consider whether there has been any less favourable treatment and the, secondly, whether the less favourable treatment was on the ground of age. 26 As stated by the Tribunal in Dutt v Central Coast Area Health Service [2002] NSWADT 133 (in the context of discrimination on the grounds of race, with which I consider there is no relevant difference given the terms of the legislation and the approach taken by the Tribunal to forms of discrimination), the "consecutive nature of these questions is apparent when there is an actual comparator, against whom to assess 'less favourable treatment'…When the comparator is hypothetical, the first question cannot be answered as a simple, stand-alone question: the way a hypothetical comparator would be treated cannot be assessed separately from asking what the ground or grounds of treatment of the applicant were…it is not until the ground for the actual treatment is known that it is possible to say whether a hypothetical person of not the applicant's race would have been treated differently". 27 Where there is no actual comparator, that is, a younger person in the same circumstances as Mr Heber who was treated more favourably, the comparator is hypothetical. In that case, the "two questions as to 'less favourable treatment' and 'on the ground of age' might be answered as part of the same reasoning exercise". 28 In Han v. NSW Department of Health [2006] NSWADT 113, the Tribunal set out the matters which needed to be considered (this time in the context of disability if an inference were to be drawn from primary facts as to the causal link between the treatment suffered by the applicant (here, dismissal) and his age. The following factors were identified in Seltsam Pty Ltd v. McGuinness (2000) 49 NSWLR 262 as being necessary to the drawing of inferences:- "A causal link, such as that which is necessary in proving direct discrimination, can be established by inference from primary facts. An inference must be reasonably drawn on the basis of the primary facts. An inference can be drawn from a combination of facts, none of which viewed alone would support that inference. A fact relied on as the basis of an inference need not be proved to the requisite standard of proof. It is not enough that the inference is a mere possibility. It must be one of "probable connection". The inference must be a logical one and not supposition. An inference cannot be made where more probable and innocent explanations are available on the evidence." (Han's case, at par [69]). 29 The primary facts here are that Mr Henney allegedly made comments about the applicant's age. After those comments, he was dismissed. There were other employees who were not dismissed. Taking those facts, and removing from consideration the kind of facts which Mr Heber seeks to add on top (such as personal allegations about Mr Henney and allegations about his conduct of this case) it is clear that if those facts are proven, Mr Henney may be able to make out a case of discrimination. While I have, as Magistrate Hennessy had, grave doubts that Mr Heber will be able to persuade a full Tribunal of his allegations given the lack of specificity, the credibility issues raised by her Honour in her decision and cited above, and the defences raised by the respondent, on the bare bones of the facts set out, there is a basis for a case to proceed to a hearing. 30 Finally, the respondent makes the point that the evidence amassed by Mr Heber and sought to be relied upon would be oppressive should the matter be allowed to proceed. Mr Grasso, for the respondent, cited the matter of Razaghi v. Director General, Department of Health [2006] NSWADTAP 33 in which a failure to particularise his complaints resulted in the Appeal Panel finding that "…In the present case, I am satisfied that the inadequacies of the evidence in the applicant's case are such that there is no likelihood that, were the case in its present state to go to hearing, that he would be successful. To permit the proceedings to continue would clearly be oppressive." 31 The Razaghi decision dealt with the admission to practice of foreign-trained doctors and involved much more widely-ranging allegations than those in the current case. While I have, as I have said, doubts that Mr Heber will be able to establish on the Briginshaw basis the allegations he has made, they are sufficiently clearly enunciated to enable the matter to be given a hearing. Conclusion 32 While there are certainly difficulties with the evidence as it is presented, and with the respondent being able to obtain instructions as to the allegations, in my view there is sufficient in the applicant's case, taken at its highest, to allow the matter to proceed to a hearing. 33 The application for dismissal is dismissed. The matter is listed for a case conference on Wednesday, 14 November 2007 at 3.15pm to fix a date for hearing.