Equal Opportunity Tribunal of New South Wales CITATION: Goodworth - V- Marsdens Motors Pty. Limited [1996] NSWEOT COMPLAINANT: Ms Annette Goodworth RESPONDENT: Marsden Motors Pty Ltd NUMBER: 76 of 1994 Mr G Bartholomew ( Judicial Member ) TRIBUNAL: Mr M Luger Ms L Nemeth De Bikal GROUNDS OF COMPLAINT: Discrimination on the ground of compulsory retirement in the area of employment DATES OF HEARING: 08/31/1995; 09/01/1995; 01/29/1996; 01/30/1996 DATE OF JUDGMENT: 08/14/1996 Complainant: Tress Cocks & Maddox (Solicitors) Mr C Moore (Counsel) LEGAL REPRESENTATIVES: Respondent: Lenehan & Co. (Solicitors) Mr G Colman (Counsel) JUDGMENT IN FAVOUR OF: The substance of this matter was decided by the Tribunal on 1 April 1996 in favour of the Complainant. At the close of hearing the parties were invited to put in written submissions on the question of damages whilst subsequently the Tribunal requested further written submissions both on that question and on the question of costs. The parties having now filed their submissions on these points the Tribunal turns to consider its decision on these matters. On the question of damages the Complainant sought both special and general damages and quantified her loss including both past and future economic loss at $81,404.35. The Respondent's position is that they ceased trading on 30 June 1994 and cannot therefore be liable for any damages after that date. This point was touched upon by counsel for the Respondent both in his examination in chief and re-examination of Mr Rogers. After Mr Rogers had stated that he had another company in addition to Marsden Motors Pty Ltd, namely, Moruya Service Centre Pty Ltd the examination proceeded as follows: Q. What does Moruya Service Centre Pty Ltd do? A. Moruya Service Centre has a contract with the N.R.M.A. Limited to provide certain services to motorists and its members. It, to elaborate on that it is the agent, it's an insurance agent for N.R.M.A. and it's also a road service agent for N.R.M.A. That's its only function. Q. And what does Marsden Motors Pty Ltd, presently do? A. Marsden Motors Pty Ltd, is just currently the freehold owner of the property in which the company Moruya Service Centre conducts its business. Q. It does nothing else at all. A. It is currently building another premises next door, but that's its only function, it doesn't trade. Q. When Marsden Motors took over, sorry, when your family took over the control of Marsden Motors in 1990, it had different functions,sorry, Marsden Motors did different things to what it does now, did it not? A. It did, yes. Q. So your evidence is that it no longer does those things. A. No, it's, it's an entirely different organisation. In re-examination the transcript reads: Q. In your evidence in chief you identified that the business of Marsden Motors Pty Limited ceased to trade. I did open up in my opening submission that you would tell the Tribunal what the date of that was.I forgot to ask that question. When did Marsden Motors cease to trade? A. 30 June 1994 Q. And all the employees at that time that were working for Marsden Motors were terminated formally were they? A. Yes they were. Q. And the new trading entity had its option, it re-employed or employed people. A. Re-employ the people. To this point the Complainant in final submissions replied thus: But in any event the primary and strongest submission in that regard is this, the Tribunal heard evidence that the entity which is now running the business that was run by Marsden Motors, now the Moruya Service Centre, the entity that is running thatbusiness re-employed all the staff that was previously employed by the respondent. That is the answer to the question, in my submission, the reasonable expectation of the complainant would have been that she would have been re-employed with the rest of the staff. So to place the complainant in the position that she would have been but for the unlawful conduct is to say that she would have been expected to continue working with the new entity; if she was working at the time with Marsden Motors she would have, with the rest of the employees, gone on the work for the new company. That is the simple answer to that submission. Counsel for the Complainant also argued as follows: The time for assessing that is the time the unlawful conduct took place. In this case the time for assessing her expectation was in February 1994 when she was terminated. At that time her expectation was to continue working with the respondent company for a period of seven years. It's simply not permissible, in my submission, to now turn around and say well the company is no longer trading because what that does is to allow a respondent company to evade its obligations by simply engineering an evasion of liability by putting itself into voluntary liquidation or otherwise and it would be quite a simple process for any respondent company to seek to evade liability by means such as occurred in the present case. At this point counsel for the Respondent objected after which counsel for the Complainant withdrew the submission adding: I don't say that that is what has occurred in the present case but simply as a matter of principle that may occur and accordingly it's not relevant then to look at what has actually happened in the meantime. To consider the last point first, and noting that counsel for the Complainant withdrew his submission, the Tribunal is of the view that it would have been an extraordinary reaction on the part of the Respondent to cease trading on 30 June 1994 merely to avoid the possibility that at some future time they might be liable to pay damages to a former employee. The Tribunal takes the view on such evidence as was placed before it that the re-organisation of the Respondent's business was undertaken for purely business and accounting reasons and that as a consequence thereof all the existing employees were formally terminated. The Complainant then argues that all the persons then employed by Marsden Motors were re-employed by Moruya Service Centre and that the Complainant would have had every expectation of being re-employed and that consequently the Respondent's liability for damages did not cease on 30 June 1994. This is to enter into the realms of pure speculation. There was no evidence before the Tribunal as to the employment needs of the Moruya Service Centre after 30 June 1994 and it cannot be simply assumed, without evidence that failure to re-employ the Complainant would have amounted to an act of age discrimination. The Tribunal therefore finds that the liability of the Respondent for damages in this matter did indeed cease on 30 June 1994 they ceased trading. Before turning to the actual quantification of special damages one further matter needs to be dealt with. One of the questions on which the Tribunal sought further written submissions was the question of the deductability of social security benefits, this being a matter of some difficulty and confusion. On this point the Respondent in his further written submissions stated: The respondent makes no submission in relation to the deductability of social security benefits and accepts the effect of the complainant's submissions. In view of the confusion on this point and in the light of the Respondent's submission thereon the Tribunal accepts the Complainant's position on this point. The Tribunal turns, in the light of the foregoing, to the problem of the actual quantification of damages. The Respondent did not make any detailed submissions on this matter and the Tribunal therefore had no option but to take the figures supplied by the Complainant as the basis of their calculation. Considering first the loss of salary for the period 10 February 1994 to 30 June 1994, the Complainant would have earned, during that period $7890, being 20 weeks at a salary of $394.50 per week. Disregarding social security payments this is therefore the amount of her loss and the measure of her damages. The complainant also sought damages for lost long service leave and superannuation. On the question of long service leave the Complainant received $1853.75 for accrued long service leave when her employment was terminated. For the period from 10 February 1994 to 30 June 1994 the Complainant's entitlement calculated on the basis of two months leave after ten years of employment would appear to be $135.55. Superannuation for the same period at 6% of salary, as claimed by the Complainant, would appear to be $473.40, making a total for special damages of $8498.95. On the question of general damages there is no doubt on the evidence that the Complainant was distressed by her dismissal and her distress was exacerbated by the pre-emptory manner in which it was carried out. For general damages the Tribunal awards the sum of $4000. The decision of the Tribunal on the question of damages is therefore that the Respondent pay to the Complainant the sum of $12,499.95. On the question of costs the Tribunal is of the view that there was nothing to indicate that the complaint presented any problems or difficulties or other circumstances such as to suggest that the Tribunal should exercise its discretion under section 114 of the Act. The Complainant argued that she was in receipt of Legal Aid benefit and that it was the policy of the Legal Aid Commission to recover costs from a legally assisted person. In a case where costs follow the event this would be, of course, perfectly reasonable, but in cases in which costs do not follow the event there would be no basis for such recovery if no order as to costs was made. The Tribunal therefore makes 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.