CITATION: North -v- City of Sydney Council [2001] NSWADT 75 DIVISION: Equal Opportunity Division APPLICANT PARTIES: Jeff William North RESPONDENT City of Sydney Council FILE NUMBER: 991081; 001053 HEARING DATES: 12/02/2001 13/02/2001 SUBMISSIONS CLOSED: 02/13/2001 DATE OF DECISION: 05/15/2001 BEFORE: Ireland G - Judicial Member at 1; Luger M - Member at 1; Silva A - Member at 53 APPLICATION: Age Discrimination - In work - Disability Discrimination - In work MATTER FOR DECISION: Principal matter LEGISLATION CITED : Anti-Discrimination Act 1977 CASES CITED: APPLICANT REPRESENTATION: In person RESPONDENT R Pepper, barrister ORDERS: 1 The claim of discrimination by the Respondent of the Applicant on the ground of the Applicant's disability, has not been substantiated, and is dismissed; 2 That the complaint of discrimination that the Applicant has been discriminated against by the Respondent on the ground of the Applicant's age, is not substantiated, and is dismissed; 3 That there be no order as to costs 1 The decision of the Tribunal in this inquiry is not unanimous in its considerations of the complaint of the applicant, Mr North, which alleged that he was unlawfully discriminated against on the ground of disability. On the complaint of the applicant that he was unlawfully discriminated against on the ground of age the Tribunal is unanimous. The separate reasons of the members of the Tribunal on the complaints are now set out. Mr G Ireland (Judical Member) and Mr M Luger (Member) INTRODUCTION 2 This enquiry by the Equal Opportunity Tribunal relates to two complaints made by the Applicant in which he claimed he had been discriminated against by the Respondent on the ground of a past disability and on the ground of age in employment. 3 The complaint relating to disability was made by the Applicant to the Anti-Discrimination Board on 11th June 1999. The complaint on the ground of age was made on 20th January 2000, the delay being explicable as it was not until the Applicant received information from the Respondent as a result of a Summons issued in relation to the first complaint, that the Applicant was able to formulate the complaint on the ground of age. The President of the Anti-Discrimination Board ("ADB") accepted that complaint although it was out of time. 4 Both complaints were heard together by the Tribunal and will be dealt with in this decision. Both complaints arise out of the manner in which the Respondent dealt with an application lodged by the Applicant with the Respondent, for the position of "Electronics/Parking Meters Technician – Team Leader". The Applicant responded to an advertisement for the position that was placed by the Respondent in the Sydney Morning Herald on 12th January 1999. On 13th January 1999 the Applicant had a telephone conversation with Miss Nicole Geldart, the Employee Relations Adviser of the Respondent. The conversation was of a general nature concerning the position. The Applicant did not leave his name. By letter dated 15th January 1999, the Applicant wrote to the General Manager of the Respondent making application for the position and enclosing a short Resume of his background and experience. In that letter he sought an interview to discuss his application. 5 On 2nd March 1999, the Applicant telephoned Miss Geldart to ascertain the position with his application. Miss Geldart advised the Applicant that he had not been successful with his application and on the same day Miss Geldart wrote to the Applicant confirming that he was not successful. 6 The Applicant complained to the person in charge of the Equal Opportunity Unit at the City of Sydney Council who several weeks later advised the Applicant that she had investigated the complaint and had referred the matter to the General Manager who would contact the Applicant. When the Applicant had not received advice by 21st April 1999, he wrote to the Respondent asking for a response. By letter dated 28th April 1999, the General Manager of the Respondent wrote to the Applicant. The most relevant portion of that letter reads: "Unfortunately from the brief information (1 page) you supplied, the selection panel did not short list you for interview as a sufficient number of other applicants presented stronger claims. This was evident in the areas of experience, operational business skills and electronics qualifications." 7 In a letter to the ADB dated 26th June 2000, the Respondent stated: "Mr North was not granted an interview because his application was poorly presented and did not display the qualities and skills we were looking for. The position required a person with a commercial approach and business initiative. Mr North had 19 years experience at a Council. This was not an advantage. He provided insufficient information in his application. Mr North provided a one page Resume in a field of competitive applications. We enclose copies of the CVs of the applicants who received an interview to illustrate how poorly Mr North's application compared." 8 The Respondent stated further in that letter that there were eleven (11) applications received for the position. Of those Applicants, four (4) were initially interviewed and subsequently one further applicant was interviewed. Of the persons interviewed, a job offer was made consecutively to three (3) persons who were unable to accept it. The job was subsequently offered and accepted by the final interviewee. DISCRIMINATION ON THE GROUND OF DISABILITY 9 The Respondent did not concede that the Applicant when he applied for the position on 15th January 1999 suffered from a disability which falls within the definition of "disability" in Section 4 of the Anti-Discrimination Act 1977 ("the Act"). That definition is in the following terms: "disability means: (a) total or partial loss of a person's bodily or mental functions or of a part of a person's body, or (b) the presence in a person's body of organisms causing or capable of causing disease or illness, or (c) the malfunction, malformation or disfigurement of a part of a person's body, or (d) a disorder or malfunction that results in a person learning differently from a person without the disorder or malfunction, or (e) a disorder, illness or disease that affects a person's thought processes, perception of reality, emotions or judgment or that results in disturbed behaviour." 10 In his report to the Tribunal dated 2nd August 1999, the President of the ADB refers to the complaint of the Applicant as "alleging discrimination on the ground of a past disability". The report does not describe the disability that was considered by the ADB in its examination of the complaint. The report of the President of the ADB to the Tribunal in relation to the complaint on the ground of age, includes a summary of that complaint sent by the President to the Respondent. In the summary President stated: "He alleges that he suffered a mental injury as a result of an assault in 1997." 11 The evidence of the Applicant, which was not disputed, shows that he had suffered from a number of injuries and illnesses, although it was not clear to the Tribunal the extent to which those injuries and illnesses continued on 15th January 1999, when he applied for the position to the Respondent. The reference to the mental disorder referred to by the President, would relate to an anxiety disorder arising out of stress which flowed from the antagonistic attitudes which had developed between the Applicant and his then employer, North Sydney Council. The evidence of the Applicant, which was supported by medical reports tendered by the Applicant to the Tribunal, demonstrates that that condition existed on 15th January 1999. 12 The medical reports tendered by the Applicant to the Tribunal demonstrate that the Applicant suffered from a carpal injury to the lower right arm, arising out of work-related conditions at the North Sydney Council and that he continued to suffer from injuries received in a motor accident. Those injuries relate to limited movement of his left arm as a consequence of an injury to his back; a part-permanent impairment to his back; and a part impairment of his neck. The motor accident was a work-related accident whilst he was employed by North Sydney Council. 13 The Applicant's evidence, which was not disputed by the Respondent, demonstrated that on 15th January 1999, the normal working relationship between the Applicant and officers of the North Sydney Council had broken down, and there had been several disputations of a serious nature between the Applicant and the officers of the Council as well as disputes between the Applicant and a delegate of his Union. His position as Parking Meter Maintenance Supervisor at the North Sydney Council was made redundant. He had been employed at the Council for a period of 18 years from January 1981 until September 1999. 14 The Tribunal is satisfied that the evidence establishes that the Applicant, on 15th January 1999, suffered from mental and physical injuries which constitute "disabilities" within the meaning of "disability" in Section 4 of the Act. Notwithstanding the reference by the President of the ADB to a mental injury, the Tribunal considers that it is appropriate to consider each of the illnesses which the Applicant was suffering on 15th January 1999, in considering the complaint of discrimination on the ground of disability. 15 The Applicant alleges that it was because of his disabilities that he was not successful in his application for the position. It is necessary to examine in detail the circumstances surrounding that application and the manner in which it was dealt with by the Respondent. The advertisement for the position stated that the Respondent was seeking a Team Leader for the Parking Meter section. The ad stated: "This position is a hands-on supervisory role where the person will need to be a technician as well as a supervisor. The successful Applicant will have a strong electronics background preferably in parking meters." 16 The Applicant sent a one page Resume which listed his education and employment background and short descriptions of his qualifications, experience and skills. The main features of the Resume were his reference to his employment at the North Sydney Council from 1980 in which he held the positions of Parking Meter Technician for 6 years, Leading Hand Technician for 7 years and a Meter Maintenance Supervisor for 5 years. His experience and skills showed that he had a TAFE Basic Electronics Certificate; 18 years total experience with the maintenance of parking meters including 13 years with 6 types of electronic parking meters and 16 years with POM type mechanical parking meters. The Applicant stated that he considered his experience and his technical skills fitted perfectly with the job description and the advertisement. He stated further that the job description provided by the Respondent was, in material terms, similar to his current job description with North Sydney Council. The Applicant stated that he considered that he met all the criteria required by the Respondent of a person to fill the position. 17 Evidence on behalf of the Respondent was presented to the Tribunal by Mrs Geldart and by Mr Saunders, the Group Manager, Employee Relations of the Living City Services Department (LCS) of the Respondent. The LCS is the commercial arm of the Respondent's services and in management and operational terms, is independent of the rest of the respondent's operations. 18 Mrs Geldart described the manner in which responses to the advertisement were dealt with. An initial culling of the applications were made by Mr Saunders and Mr McNaulty who was the Group Manager, Physical Services of LCS. The position of Team Leader of Parking Meters reported to Mr McNaulty. It was Mr McNaulty who wrote the job description. Mr Saunders described his position in relation to the appointment process, as the Supervisor of the appointment. 19 After the culling process, the persons selected were interviewed by a team comprising Mr Saunders, Mr McNaulty and Mrs Geldart. After the interviews, the selection of the successful applicant was made by Mr Saunders and Mr McNaulty, Mrs Geldart did not participate in that part of the process. 20 Mr Saunders stated that the Applicant was not selected to be interviewed because of the poor quality of his application. He said that his Resume was too brief and gave insufficient information to enable the Applicant to be assessed as having the necessary technical skills or necessary degree of experience which was sought by the Respondent. He stated that the Respondent was looking for someone outside of Local Government who could think like a person from private enterprise. Local Government experience was not seen as an advantage. The Applicant's resume was interpreted as just "rattling off" what was in the job description. It contained no substantiation to support the brief statements in the Resume document. He said that he got the impression from the application that there was not a lot of time and effort put into it and that there was little motivation demonstrated for the job. 21 More importantly, Mr Saunders stated that after receipt of the applications, the director of LCS stated that he wanted greater emphasis to be placed on a person who knew the financial implications of the job and had an understanding of financial skills and how a business would operate. Although technical experience was still a requirement, the emphasis was to be placed on a person with an Electronic Certificate qualification from TAFE as the Council planned to use an electronic parking meter system. 22 Mr Saunders stated that there was a transition in the thinking about the requirements of the person to fill the position, before the interview process. He described that transition as an emphasis on business and commercial skills rather than on technical skills or a background in managing parking meters. 23 It is clear to the Tribunal that at some point in time after the Respondent placed the advertisement for the position, it was decided to seek applicants not in accordance with the criteria described in the advertisement nor specified in the job description but to concentrate on selecting a person who would be likely to bring to the position an ability to operate parking meters on efficient, economic and commercial lines, and to give emphasis to those skills in the selection of a successful applicant. Both Mr Saunders and Mrs Geldart stated that it was on that criteria that they prepared the short-list of applicants to be interviewed. Initially, four persons were interviewed and of those one was a current employee of the Respondent, who, Mr Saunders described, as an applicant who was given an interview in order to appease the Union and that he was not seen as a suitable applicant likely to succeed in his application. 24 The evidence of Mrs Geldart and Mr Saunders about the attributes of the persons interviewed to meet the new commercial criteria of the Respondent, did not demonstrate that those applicants had any strong claims based on experience in commercial enterprises. Mr Saunders stated that he and Mr McNaulty selected three of the four applicants as having sufficient background in their experience to be able to develop the necessary commercial skills that the Respondent was seeking. As a consequence, the Respondent made offers to three of the four applicants. Those applicants were unable to accept the offers. This required a further interview of a fifth applicant and Mr Saunders and Mr McNaulty were sufficiently impressed with this applicant's background both in technical skills and commercial experience to offer him the position and that offer was accepted. 25 The Applicant stated that he believed that the true reason why he was not selected for an interview was because the officers of the Council who were responsible for the appointment knew of his background in terms of his disabilities and his disputations with the North Sydney Council. The Applicant stated that there existed a practice among Councils where senior officers would regularly meet and discuss common issues. The only evidence that the Applicant was able to put before the Tribunal about the meetings was a statement in a letter written to the Applicant by the Human Resources Manager of the North Sydney Council on 6th July 2000 which stated: "It is common practice for Councils to contact each other to obtain details of salary ranges and copies of position descriptions. Such requests are not logged and therefore, I cannot provide you with any of the details you require." 26 The Applicant stated that he was aware that it is regular practice between Councils that they exchange information of common benefit and that they do hold meetings of the type to which he referred. The Applicant further stated that he believed that information about his disabilities and the problems he had with the North Sydney Council would have been conveyed to officers of the Respondent, through such contacts. The Applicant submitted that the Tribunal should draw an inference that the Respondent was aware of his disabilities at the time it decided not to select him for interview, and that the reason, or one of the reasons, for that decision was the knowledge that the Applicant suffered disabilities. 27 Both Mrs Geldart and Mr Saunders denied that they had any knowledge that the Applicant suffered from injuries or illness. 28 The only other evidence to support the Applicant's contention was the response which the Applicant stated was made to him by Mrs Geldart when he phoned her on 2nd March 1999 to enquire about the progress of his application. Mr North stated that Mrs Geldart said to him: "Oh, you have had some time off sick or something." He said he replied: "How would you know that?" And that she then said: "Anyway you didn't have enough experience." The Applicant stated that he said to Mrs Geldart: "How do you know all this. You didn't interview me." He said that she became defensive and hostile and stated: "We don't have to give you reason why so that's it." 29 The Applicant points to this conversation as illustrating that Mrs Geldart knew that the Applicant was on sick leave and asks the Tribunal to infer that Mrs Geldart would have conveyed that information to Mr Saunders and to Mr McNaulty. That information would have been further confirmation of the knowledge that they already had through the exchange of information with the North Sydney Council, about the Applicant's disabilities. 30 Mrs Geldart, in her evidence, denied that she had knowledge that the Applicant was on sick leave. She stated that some time between 20th January 1999 and 28th January 1999 she had a telephone conversation with a person at the North Sydney Council when she asked to speak to Mr North. The person said: "He is not available. He is currently on leave. Do you want to leave a message?" 31 Mrs Geldart said that she did not leave a message for Mr North. Mrs Geldart said further that she was not sure whether the conversation to which the Applicant referred took place on 2nd March but she does say that when the Applicant contacted her about this job application he said: "I am ringing to find out why I was unsuccessful for the position." Mrs Geldart replied: "I am afraid that there was a high standard of applications. We have appointed someone with strong technical and supervisory experience who also can show proven business initiative. This is an important part of the role." 32 She stated that Mr North said: "I have blank years (she could not recall the exact period referred to by the applicant) experience in exactly the same work. I disagree with this decision." Mrs Geldart replied: "Well I encourage you to discuss the application with my manager." 33 She said that she then gave the Applicant the name of Mr Chris Saunders and his phone number. The Applicant then said: "Did you ring North Sydney Council?" Mrs Geldart said: "Yes I did. I tried to ring you back on your mobile but it was always out of range so I contacted your work listed number on your application. Don't worry, I didn't leave a message so as not to jeopardise your employment there." She said that the Applicant stated: "I was away on sick leave. How did you know that I was on sick leave? That is really none of your business." Mrs Geldart said she responded: "I didn't. The person I spoke to just said you were on leave. He didn't say what sort of leave." 34 The Applicant supports his version of this telephone conversation by reference to a page of his diary which he tendered in evidence. He stated that he had lost his diary but had retained a photocopy of the relevant page, which he produced in evidence. There is a dispute by the Respondent that the entry on that page of the diary should be accepted as a genuine record made by the Applicant at the time of the conversation. It was suggested that because of the use of different coloured pens on the page that the entry was not made contemporaneously and because it was a photocopy, the entry may have been tampered with. The Tribunal is prepared to accept that the photocopy of the diary entry is a proper record made by the Applicant of his conversation with Mrs Geldart. The fact that he made the diary note inclines the Tribunal to accept his version of his telephone conversation, in preference to the recollections of Mrs Geldart about that conversation. The Tribunal accepts that at some point in time after the Applicant lodged his application with the Respondent and before the culling of those applications by the Respondent, Mrs Geldart knew that the Applicant was on sick leave. The Applicant seeks that the Tribunal infer from the knowledge that Mrs Geldart knew that he was on sick leave during that period, and that the Respondent's failure to select him for an interview, was because of his disabilities. FINDINGS ON COMPLAINT OF DISCRIMINATION ON THE GROUND OF DISABILITIES 35 The circumstances related in the proceeding sections, are claimed by the Applicant to constitute discrimination on the ground of disability. The claim of discrimination is made under Section 49B(1)(a) of the Act, ie, it is a claim of direct discrimination. It is further claimed that such discrimination is unlawful by virtue of Section 49D(1)(a) and (b) of the Act. 36 The relevant provisions of the Act are as follows: "Section 49A: A reference in this Part to a person's disability is a reference to a disability: (a) that a person has, or (b) that a person is thought to have (whether or not the person in fact has the disability), or (c) that a person had in the past, or is though to have had in the past (whether or not the person in fact had the disability), or (d) that a person will have in the future, or that it is thought a person will have in the future (whether or not the person in fact will have the disability)." "Section 49B: (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, or " "Section 49D (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 " 37 For the reasons expressed earlier, in the application of Section 49A to the complaint, sub-paragraphs (a) and (c) would encapsulate both the mental disability and the physical disabilities of the Applicant. The Tribunal considers that it is appropriate that it considers those disabilities in the application of Section 49B(1)(a) of the Act to the circumstances of this complaint. 38 Initially it is necessary for the Tribunal to determine whether the Respondent treated the Applicant less favourably than in the same circumstances, or in circumstances which are not materially different, the Respondent treated a person, or persons who did not have the disabilities of the Applicant. 39 The Applicant submitted that he was treated less favourably than the applicants who were chosen to be interviewed because he better met the criteria for selection as stated in the application advertisement and in the job description, than any of the other applicants. He points to his 18 years of experience in a position similar, if not identical, to the position that the Respondent was seeking to fill. The Applicant stated that even taking account of the change in emphasis on the criteria for the position, made by the Respondent after applications were received, so that the emphasis was to be placed on the commercial skills of an applicant and not on the applicant's experience and skills in the role as supervisor of Parking Meter enterprise, he should have been selected for an interview. None of the applicants who were interviewed could demonstrate that they had commercial skills or experience and he, the Applicant, could have demonstrated that he had as much capacity to gain commercial skills as any of those who were chosen to be interviewed. 40 In the view of the Tribunal, these submissions do not take account of the evidence of Mr Saunders that the reason why the Applicant was not chosen to be interviewed was the inadequacy of his application and the insufficiency of the information in that application to enable the Respondent to assess the Applicant's abilities against other applicants who had made much fuller responses, and the view taken by Mr Saunders and Mr McNaulty that the paucity of the application by the Applicant demonstrated a lack of motivation for the position. There was in addition the reason that Mr Saunders and Mr McNaulty had decided to give greatest emphasis to the commercial abilities of the applicant and then they assessed other applicants as being able to demonstrate such abilities, in preference to the Applicant. In effect, the Applicant seeks to demonstrate that he has been less favourably treated by the Respondent because the Applicant believes that he was the best qualified person for the position and the Respondents failed to give him the opportunity to demonstrate his abilities by selecting other applicants in preference to him, to be interviewed for the position. To make such an assessment, the Tribunal would be required to make judgments about the relative merits of each of the applicants for the position and to make a determination that the Respondents should have preferred the Applicant to any of the other applicants. Such an exercise of the nature sought by the applicant, is not an appropriate application of Section 49B(1)(a) of the Act, provided all of the applicants were treated in the same manner. 41 The Applicant in this enquiry was not represented. In the view of the Tribunal his submission on this issue has not gone far enough in demonstrating that he received less favourable treatment by the Respondent. In the view of the Tribunal it is not less favourable treatment simply because the Respondent did not adequately assess the application of the Applicant. It may have been unfair of the Respondent to reject the Applicant's application because it did not contain sufficient information when compared to information supplied by other applicants, and particularly in the face of the request from the Council's application form that resumes be kept short. The fact that the Respondent did not include the Applicant amongst those to be interviewed, because of the paucity of the information in his application, and the failure to assess his true worth as a consequence, is not sufficient to demonstrate that they treated the Applicant less favourably than the other applicants. 42 The less favourable treatment of the application by the Respondent, in the view of the Tribunal, arises out of the decision taken by Mr Saunders and Mr McNaulty after the applications were received, that the criteria for assessing applicants would be changed from the criteria stated in the job advertisement and in the job description, and to then proceed to make an assessment of those applicants to be interviewed on the information set out by the applicants in their application and their accompanying resumes. For the Respondent to proceed to select some in preference to other applicants based on a new criteria, without giving all applicants the opportunity to respond to the new criteria, makes both a mockery of the process as a process fair to all applicants, and constitutes less favourable treatment of the applicants who were not selected for an interview. The Applicant was one of those in the latter category and he together with the others who were not chosen for an interview, were, in the view of the Tribunal, less favourably treated than in the same circumstances, were those who were chosen to be interviewed. The Respondent accordingly has perpetrated a discrimination against the Applicant. 43 It then becomes necessary to determine whether the discrimination of the Applicant by the Respondent was on the ground of the Applicant's disabilities. The Tribunal has earlier reviewed the evidence on which the Applicant seeks to establish that the reason for the discrimination was his disabilities. The Applicant bears the onus of satisfying the Tribunal that on the balance of probabilities, and having regard to the serious nature of the allegations, that the reason why the Respondent did not select the Applicant to be interviewed was that the Respondent was aware that the Applicant had disabilities and that the Respondent had decided that because of those disabilities it would not include the Applicant amongst those chosen to be interviewed. 44 No evidence was given to the Tribunal by Mr McNaulty and the Tribunal is entitled to infer that had Mr McNaulty given evidence to the Tribunal, his evidence would not have assisted the Respondent in its denial of knowledge of the Applicant's disabilities. Both Mr Saunders and Mrs Geldart denied that they had such knowledge. Mrs Geldart has denied, although the Tribunal prefers the Applicant's evidence to the contrary, that she knew early in the recruitment process that the Applicant was on sick leave from his then employment with the North Sydney Council. The Applicant believes that there would have been an exchange of information either formally or informally and either innocently or maliciously, between representatives of the North Sydney Council and representatives of the Respondent which would have disclosed the background of the Applicant's history of employment with the North Sydney Council including his disabilities and his on-going disputes with that Council. 45 The Applicant's belief, no matter how genuinely held by him, is not sufficient in the absence of any specific evidence to support the belief that such an exchange of information in fact took place or from which the Tribunal is entitled to infer that such information became known to the Respondent through the exchange of information. The letter from the Human Resources Manager of the North Sydney Council to which reference has been made, is not sufficient to justify the Tribunal in drawing such an inference. 46 In the view of the majority of the Tribunal, the Applicant has failed to discharge the onus of satisfying the Tribunal that the reason or the cause of the Respondent failing to select the Applicant to be interviewed was based on his disabilities. 47 Accordingly the Tribunal, by majority, determines that the complaint of the Applicant that he was discriminated against by the Respondent on the ground of his disabilities, has not been substantiated. COMPLAINT OF DISCRIMINATION ON THE GROUND OF AGE 48 The later complaint brought by the Applicant against the Respondent alleges that the reason for the discrimination arising out of the Respondent's failure to select the Applicant to be interviewed for the position was because of the age of the Applicant when compared to the age of those who had been selected to be interviewed. Mr Saunders in his letter to the ADB dated 26th June 2000, stated that the age of applicants was never considered. He said that many of the applicants did not give their ages. Mr Saunders lists the names of the applicants, of whom three (3) did not show their age in their applications. Two applicants who were not interviewed were aged 26 years and 40 years. The five applicants who were interviewed were aged 27, 28, 32, 34 and 36. The job was offered initially to the applicant aged 28, then to the applicant aged 27 and then to the applicant aged 32 and the final offer which was accepted, was made to the applicant aged 34. 49 Mr North is aged 42 years. 50 Mr North points to the age differences of the applicants, who were chosen to be interviewed, and his age to demonstrate that the selection was made against him, because he was the oldest of the applicants and it is clear, according to his submission, that the applicants who were selected to be interviewed were selected because they were of a younger age and were more likely, in his submission, in the view of the Respondent to be amenable to training and development particularly for the commercial application to the position that was required by the Respondent. 51 Again, the onus is on the Applicant to satisfy the Tribunal on the balance of probability and having regard to the serious nature of the allegation, that the reason for the Respondent to have discriminated against the Applicant in choosing other applicants in preference to him, to be interviewed for the position was because he was older than the other applicants. In the face of the denial of such a reason by Mr Saunders and in the absence of any other supporting material for the claim by the Applicant, the Tribunal is not able to find that this claim of discrimination on the ground of age has been substantiated. 52 The Tribunal, unanimously, finds that the claim of discrimination of the Applicant by the Respondent on the ground of the age of the Applicant, has not been substantiated. Mr A Silva (dissenting): (A) DISCRIMINATION BASED ON DISABILITY 53 In a letter to the ADB dated 26 June 2000, the Respondent stated: "Mr North was not granted an interview because his application was poorly presented and did not display the qualities and skills we were looking for. The position required a person with a commercial approach and business initiative. Mr. North had 19 years experience at a Council. This was not an advantage. He provided insufficient information in his application. Mr North provided a one page Resume in a field of competitive applications. We enclose copies of the CVs of the applicants who received an interview to illustrate how poorly Mr North's application compared." 54 It is necessary to analyse how justified the above reasoning appears to be. In the first sentence the reasons offered are that his application was (a) poorly presented and it (b) did not display qualities and skills the Respondent was looking for. 55 In looking at whether it was poorly presented as compared to the applicants who were interviewed I note that none of the applicants who were interviewed addressed the selection criteria properly, that is addressed each selection criteria separately. All of them had a three page CV (except Mr Suptut who had a 5 page CV) and a cover letter. Mr. North's CV was in a single page but it was in small font and had enough information to go into two pages. However it should be noted that the Council only asked for a "short resume" without specifying what was an acceptable resume, therefore Council could not say that his resume was too short. Overall I do not believe that the contrast in presentation is so huge between the Applicant and the interviewed applicants as to make it a significant matter to hold against him. 56 As to whether his application displays qualities and skills that the Respondent was looking for, in both the advertisement and the selection criteria, importance was given to skills relating to parking meters. In the advertisement it was stated that "The successful applicant will have a strong electronics background preferably in parking meters." In the Selection Criteria itself there were 12 criteria. Of the 12 criteria 6 dealt with parking meters in detail. Of the 12 criteria the first three criteria deal with the knowledge and skills relating to parking meters. These three criteria appear to have been considered so important that the drafters of the criteria went to great detail in formulating them. What all these point out, is the overwhelming importance given to the knowledge and skills related to parking meters. 57 Of all the applicants Jeff North was the one who had extensive experience in parking meters. It could be strongly argued that none of the others, except Mr Suptut had any experience with parking meters. Therefore if we are to use the only selection criteria available in written form, the reasoning that he didn't display qualities and skills the Respondent was looking for appears to be wrong as it was he more than others who appear to satisfy six of the twelve criteria. 58 It was also stated in the letter to the ADB that "The position required a person with a commercial approach and business initiative." This was not in the advertisement and it was not in the selection criteria. Mr. Saunders, Group Manager, Employee Relations stated that after receipt of the applications, the Director of LCS stated that he wanted greater emphasis to be placed on a person who knew the financial implications of the job and had an understanding of financial skills and how a business would operate. He further said that although technical experience was still a requirement, the emphasis was to be placed on a person with an Electronic Certificate qualification from TAFE as the Council planned to use an electronic parking meter system. 59 Both Mr. Saunders and Mrs. Geldart stated that Mr. Saunders and Mr. Hamish McNulty, the Section Manager of Physical Services, in selecting the candidates for interview used the criteria that commercial skills are important than skills related to parking meters. However the evidence of Mrs. Geldart and Mr. Saunders about the attributes of the persons interviewed to meet the so called "commercial criteria" of the Respondent did not demonstrate that those applicants had any strong claims based on experience in commercial enterprises. From their evidence it appeared that they were trying to find some substance in the applications of the applicants who were interviewed to justify their claim. Mrs. Geldart in particular appeared desperate in trying to link various skills stated in the applications of the candidates who were interviewed, with commercial skills. She also tried desperately to find reasons why Mr. North's stated skills are not related to commercial skills. 60 Another problem with the argument about commercial skills was that the applicant who had the strongest commercial skills Mr. Mazzarino was not interviewed in the first round and the reason offered was that because of his pilot license he would not stick around for long. I do not accept this argument because if "commercial skills" were as important as Mr. Saunders and Mrs. Geldart made it out to be then he would have been given an opportunity in spite of his having a pilot's license. I also can not find an explanation as to why Mr. Mazzarino was interviewed later even though there was no evidence to say that there was an opportunity for him to assure the selection panel that he was serious about the position and that if offered he would not leave the position to be involved in flying as a pilot. All these point to the view that "commercial skills" was not as important as Mr. Saunders claim it to be and that it was over emphasised in order to defend the claim of discrimination. 61 Since the Respondent did not get Mr. McNulty to give evidence to support the claim about the commercial skills an inference could be drawn that had he given evidence it may not have been favourable to the Respondent . 62 As to which selection criteria to use when deciding whether the Applicant was discriminated I note that the applicant was entitled to be assessed based on the selection criteria known to all applicants. It is also not clear what the actual selection criteria that was used eventually. Without a proper written document that shows what the updated selection criteria was only way to do justice to the Applicant was to use the only selection criteria that is available in written form. LESS FAVOURABLE TREATMENT 63 The Applicant was treated less favourably because the Respondent did not apply the selection criteria to all of them equally. Had they applied, it would have become clear that none of the people chosen for interview met the six criteria about parking meters and the applicant was the only one who met those criteria. The reason why the Applicant was not chosen to be interviewed whereas five others were chosen demonstrates unequal application of the selection criteria. 64 The Respondent treated Complainant less favourably as he deliberately chose to down- play his skills and exaggerate the skills of the candidates chosen for the interview. Had the Respondent applied the second selection criteria equally some of the candidates chosen for interview would not have been chosen because they did not have commercial skills. By deliberately down playing the need for parking meter experience – after all the position was "Team Leader – Parking Meters"- even going to the extent of saying that it was a disadvantage- the Respondent treated the Complainant deliberately and less favourably. 65 Whereas the respondent appears willing to give a chosen few an opportunity to expand at the interview, he does not appear to be willing to give that opportunity to the Complainant. Whereas the Respondent appears willing to look at the potential of the chosen applicants to fulfill the essential requirement of the job they appear not willing to give that opportunity to the Complainant. 66 Whereas the Respondent is trying very hard to find some relevance in the CV to the commercial skills of the selected applicants the Respondent is trying very hard to find reason to down play the Complainant's skills related to commercial skills. 67 Had the Respondent chosen to treat all candidates equally then they would have treated the Applicant by giving him opportunity to expand in the interview. They would have not imposed a requirement that the resume should be detailed because they have only asked for a short resume. 68 It is difficult to find justification for not offering to interview an applicant who seemed to be working in a similar position with many applicants who were interviewed who had no familiarity with parking meters. Also on the part of Mr. Saunders to say that experience in the Council in a disadvantage in my opinion is without a proper basis. Whereas candidates who have worked in Defence Forces in looked upon in positive light for commercial skills, for someone who has worked in the Council for so long and with parking meters, his experience is being put forward as a liability. On a rational basis I find this difficult to accept. 69 Therefore on the balance of probabilities we have to identify the reason for not giving Mr. North an opportunity to be interviewed. With the Council's reason for not interviewing being not accepted on the balance of probabilities Mr. North has offered a different explanation. BASED ON DISABILITY 70 The Applicant stated that he believed that the true reason why he was not selected for an interview was because the officers of the Council who were responsible for the appointment knew of his background in terms of his disabilities and his deputations with the North Sydney Council. The Applicant stated that there existed a practice among councils where senior officers would regularly meet and discuss common issues. The first evidence that the Applicant was able to put before the Tribunal about such meetings, was a statement in a letter written to the Applicant by the Human Resources Manager of the North Sydney Council on 6 July 2000 which stated: "It is common practice for Councils to contact each other to obtain details of salary ranges and copies of position descriptions. Such requests are not logged and therefore, I cannot provide you with any of the details you require." 71 The Applicant further stated that he believed that information about his disabilities and the problems he had with the North Sydney Council would have been conveyed to officers of the Respondent, through such contacts. The Applicant submitted that the Tribunal should draw an inference that the Respondent was aware of his disabilities at the time it decided not to select him for interview, and that the reason, or one of the reasons, for that was the knowledge that the Applicant suffered disabilities. 72 The other evidence to support the Applicant's contention was the response which the Applicant stated was made to him by Mrs. Geldart when he phoned her on 2 March 1999 to enquire about the progress of his application. 73 Mr. North said that Mrs. Geldart said to him: "Oh yes I remember you, you have had some time off sick or something." He said he replied: "How do you know that?" And that she then said: "Anyway we have already appointed someone." He then enquired: "Why was I not granted an interview." She replied: "You didn't have enough experience." The Applicant stated that he said to Mrs. Geldart: "How do you know that you didn't interview me." He said that she became defensive and hostile and stated: "Anyway we do not have to give reasons, you did not get the position and that's it." 74 In her version of the above conversation Mrs. Geldart said that she was not sure about the date but when the Applicant contacted her about this job application he said: "I am ringing to find out why I was unsuccessful for the position." Mrs. Geldart replied: "I am afraid that there was a high standard of applications. We have appointed someone with strong technical and supervisory experience who can show proven business initiative. This is an important part of the role." She stated that Mr. North said: "I have ……. years (couldn't remember how many) experience in exactly the same work. I disagree with this decision." Mrs. Geldart replied: "Well I encourage you to discuss the application with my Manager." 75 She said that she then gave the Applicant the name of Mr. Chris Saunders and his phone number. The applicant then said: "Did you ring North Sydney Council?" Mrs. Geldart said: "Yes I did. I tried to ring you back on your mobile but it was always out of range so I contacted your work listed number on your application. Don't worry, I didn't leave a message so as not to jeopardise your employment there." She said the Applicant stated: "I was away on sick leave. How do you know that I was on sick leave? That is really none of your business." Mrs Geldart said she responded: "I didn't. The person I spoke to just said you were on leave. He didn't say what sort of leave." 76 The fact that the Applicant made diary notes inclines the Tribunal to accept his version of his telephone conversation, in preference to the recollections of Mrs. Geldart about that conversation. In the result, the Tribunal accepts that at some point in time after the Applicant lodged his application with the Respondent and before culling of those applications by the Respondent, Mrs. Geldart knew that the Applicant was on sick leave. 77 I note that the evidence as given by Mr. North where Mrs. Geldart allegedly made reference to his being on sick leave appears a more natural and credible version as compared to her version which looks unusually formal. 78 I find the following response stated in her version of the conversation difficult to accept as a truthful version: "I am afraid that there was a high standard of applications. We have appointed someone with strong technical and supervisory experience who can show proven business initiative. This is an important part of the role." 79 The above alleged response looks too formal and more like a prepared text than a normal conversation. It is also difficult to believe that she had such a formal response with all the formal reasons within it ready to respond to him when he contacted her without a prearranged time for the call. 80 I also find that one of the alleged responses of his (given below) as given by her difficult to accept as well: "I was away on sick leave. How do you know that I was on sick leave? That is really none of your business." 81 Knowing the Applicant during the hearing I find difficult to believe that he would himself say that he was on sick leave and then ask quickly how do you know that I was on sick leave. It does not make sense. 82 The Applicant seeks that the Tribunal infer from the knowledge that Mrs. Geldart knew that he was on sick leave during that period and that the Respondent's failure to select him for an interview was because of his disabilities. As stated before the Tribunal has accepted that Mrs. Geldart knew that he was on sick leave before the culling. 83 Throughout the proceeding Mr. North appeared as a credible witness. His credibility was only in question when his version was put against the version given by Mrs. Geldart. Overall Mrs. Geldart appeared to be not a credible witness. The Tribunal was so concerned about her evidence at one stage as to stop the proceeding to give her an opportunity to consider her evidence. Her evidence in trying to find commercial skills out of the application of the applicants who were interviewed is not acceptable. Also in my opinion the attempt by her and Mr. Saunders to distance her from the decision making in spite of the fact she was part of the interview panel and was the contact for the applicants, all point to a credibility problem related to her and also a strategy on the part of her and Mr. Saunders to minimise any damage resulting from her communication to Mr. North. 84 Therefore I am inclined to believe Mr. North. As I find that the Council has not offered a credible and substantial reason for not offering to interview Mr. North. Mr. North was able to meet major parts of the essential criteria where others were not being able to do so – especially in relation to parking meter skills, on the balance of probabilities I believe that he was not given this opportunity because of his disability. Mrs. Geldart's conversation with Mr. North supports the proposition that she was aware of this disability and being off on sick leave. No doubt this would have been communicated to her superior, Mr. Saunders. 85 I therefore hold that on the balance of probabilities. Mr. North was discriminated based on disability. (B) DISCRIMINATION BASED ON AGE 86 I agree with the majority that there is no basis for discrimination based on age of the Applicant. DETERMINATION OF THE TRIBUNAL 87 In view of the findings of the majority of the Tribunal, the Tribunal makes the following directions: 1. The claim of discrimination by the Respondent of the Applicant on the ground of the Applicant's disability, has not been substantiated, and is dismissed. 2. That the complaint of discrimination that the Applicant has been discriminated against by the Respondent on the ground of the Applicant's age, is not substantiated, and is dismissed. 3. That there be no order as to 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.