Equal Opportunity Tribunal of New South Wales CITATION: Goodworth - V - Marsdens Motors Pty. Limited (No.1) [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: 04/01/1996 Complainant: Tress Cocks & Maddox LEGAL REPRESENTATIVES: Respondent: Lenehan & Co. JUDGMENT IN FAVOUR OF: The complainant, Mrs Annette Goodworth, is an Australian citizen living at Moruya in the State of New South Wales. The respondent is a corporation incorporated in the State of New South Wales. The complainant lodged a complaint against the respondent with the Anti-Discrimination Board on 7 March 1994 alleging compulsory retirement in the area of employment contrary to section 49 ZV of the Anti-Discrimination Act. The Board attempted to conciliate the matter but was unsuccessful and the President of the Board referred the complaint to the Tribunal on 22 November 1994 pursuant to section 94(1) of the Act. The matter was listed before the Tribunal for directions on 20 December 1994 on which occasion the matter was set down for hearing on 26 and 27 April 1995. These dates were subsequently vacated to allow for a legal aid application to be made, and the matter was set down for hearing on 31 August and 1 September. The hearing having not been completed on 1 September, further hearing dates were set for 29 and 30 January 1996. The complainant, who was born on 13 January 1941, and was aged 53 years on 14 February 1994, was employed by the respondent and had been employed since 1988. On 10 February 1994 her employment was summarily terminated by the respondent. That the complainant was employed by the respondent and that her employment was terminated by them is not in dispute. The question before the Tribunal is whether the termination of her employment was unlawful as constituting compulsory retirement on the ground of age contrary to section 49 ZV of the Act. The complainant argued that it was; the respondent, that it was not. As the respondent argued that the termination of the complainant's employment was not contrary to section 49 ZV of the Act, it is convenient to consider first the reasons put forward by the respondent for the termination. Initially, the Employment Separation Certificate issued by the respondent and signed by the Managing Director of the respondent, Mr Sydney James Rogers (known as Mr "Jim" Rogers), on 10 February 1994 indicated, by ticking the appropriate box, that the reason for termination was "shortage of work". This Mr Jim Rogers elaborated upon in his letter to the Anti-Discrimination Board dated 20 May 1994 in which he stated: "NRMA declared Marsden Motors Pty Limited to be a two person office based on the number of transactions. At that time the office was overstaffed by one clerk." The situation appears, however, to have been not as Mr Rogers described it. It is first necessary to note that the NRMA assessment of staffing requirements was based solely on the number of transactions conducted by the office operating as an NRMA Service Centre. It did not relate to other activities undertaken by the respondent such as dealerships and the like. This was made clear by the evidence of Mr James Henry, the area manager for NRMA. In other words, whether the respondent's office was overstaffed or not could not be assessed solely by the NRMA criteria. Second, it is necessary to note that at the beginning of 1993 the office was staffed by two persons, the complainant and Ms Tracey Jones, the Head Clerk. Early in 1993, according to Mr Jim Rogers, at a meeting between him and his co-directors, he stated: "We are at risk being so dependent on Tracey. I think we should employ someone to come up to her standard so that if she is away we are covered. If the business continues to build up, we will eventually need three people in the office. I have been approached by Sapphire Coast Group Training Limited to take a trainee." and he added: "I will have Tracey interview some trainees to see if there is one available who is of a high enough standard for the job." In the event, a trainee, Ms Christi Britt, was appointed and commenced work in the office on 15 February 1993. The traineeship, which involved attendance at TAFE courses two days a week, was for 12 months. Whether Ms Britt was "employed" within the meaning and for the purposes of the Anti-Discrimination Act during the period of her traineeship is not a matter into which the Tribunal need go at the moment. It is sufficient to note that there was no obligation on the respondent to employ Ms Britt after the termination of her traineeship. This was clearly understood by Ms Britt who deposed that she asked Mr Jim Rogers at some time towards the end of 1993 in words to the following effect: "Do you think I will be employed here after I finish my traineeship or do you think I should go to Canberra to do the public service exam." Mr Jim Rogers replied, according to Ms Britt's affidavit: "Yes there will be a position for you, but take the exam anyway." This was not denied by Mr Jim Rogers who deposed that Ms Britt asked him in words to the following effect: "What are my chances of a job here when my traineeship expires", to which he replied: "Every chance", making it clear that he equally understood the situation. On 10 February 1994 when Mr Jim Rogers signed the complainant's Employment Separation Certificate, Ms Britt's traineeship had but four days to run. Only if she was then offered further employment would the office have been overstaffed, according to the NRMA criteria. If, under the circumstances, Ms Britt was offered further employment before the complainant's employment had been terminated, that would have been, on the respondent's own argument, tantamount to deliberately overstaffing the office for the purpose of justifying the termination of the employment of another employee. Even if the sequence of events were reversed, this would imply, again on the respondent's own argument, that an incumbent employee was dismissed so that someone else could be appointed. Neither of these situations would constitute sufficient justification for the termination of the complainant's employment. In the event, Ms Britt was offered further employment prior to the termination of the complainant's employment, but declined the offer, saying to Mr Jim Rogers, according to her affidavit: "I do not want the job. I am not comfortable with the situation about Annette losing her job. I have found a position that is closer to home and I won't need to travel so far." The Tribunal takes the view that neither the NRMA criteria nor the claim of overstaffing can be used by the respondent as justification for the termination of the employment of the complainant. In evidence Mr Jim Rogers put a further interpretation on the matter, alleging that the claim that the termination was justified owing to shortage of work was based on the fact that there had been a change in the nature of the complainant's work in that the amount of bookkeeping had diminished substantially - as was alleged by Mr Damien Rogers in his affidavit - bookkeeping being what the complainant was employed to do. To this the complainant replied that she was not employed as a bookkeeper but as a clerk. The Tribunal does not see this interpretation as substantially assisting the respondent's position in relation to this point. During the hearing another justification was pressed, namely, that the complainant was inefficient and even incompetent. The difficulty which the Tribunal has with this point is that the complainant has been employed in the office since 1988 and yet no suggestion was raised as to her efficiency or competence until Ms Christi Britt was appointed to the traineeship. Now, it may well be the case that Ms Britt was more efficient than the complainant, but it does not follow from this that the complainant was inefficient, and certainly not that she was sufficiently inefficient to justify the termination of her employment, and indeed Ms Tracey Jones deposed that she was not even aware of the complainant's alleged inefficiency until Ms Britt arrived in the office. The evidence for the complainant's alleged inefficiency or incompetence turned on a few points, most of which would have been clearly evident before Ms Britt arrived on the scene. One allegation was that the complainant could not type, yet the evidence suggested that there was very little typing required. There was some evidence to suggest that when Ms Jones returned from holidays there was a backlog of work which had not been done and in particular cheques which had not been issued. As against this, there was also evidence that there was a "habit" with Marsden Motors - Mr Jim Rogers insisted that it was a "habit", not a "policy" - to pay some creditors before others. It was not made clear how much of the alleged backlog of work was the result of this "habit". The principal allegation regarding the complainant's efficiency turned on her ability to remember computer code numbers - especially, apparently, when under pressure - and indeed Ms Jones in giving evidence stated that this was the principal concern regarding the complainant's efficiency. That the complainant had to ask for computer code numbers - even if this was frequent - seems to the Tribunal to be a somewhat insubstantial basis upon which to terminate a person's employment. On the other hand, the Tribunal notes that Ms Britt asserted that the complainant was competent, stating: "I believe that she was very competent at her N.R.M.A. work and both the book work that she would do for Marsden Motors." It is true, as was pointed out by the respondent, that Ms Britt, being a trainee, had not a wealth of experience on which to base such an assessment, but in the Tribunal's view Ms Britt was an intelligent woman, who spent three days a week in the office during which time she could observe the complainant's work, and it was admitted that she was herself an efficient office worker. She was in a position to note incompetence if she saw it. In the Tribunal's view her evidence is not to be ignored. On the other hand, Mr Jim Rogers, who, in evidence, stressed the complainant's alleged incompetence, was not regularly in the office for any length of time observing office procedures, whilst Ms Jones, who was in the best position of all to assess the complainant's competence, appears to have been unaware of the matter until the arrival of Ms Britt, and even then, as noted above, saw the recollection of computer code numbers as the only significant problem. A further point which has weighed with the Tribunal is the point that, as deposed by Mr Damien Rogers, the complainant was offered, at the time of her dismissal, part-time work. There was some dispute on this point between Mr Jim Rogers and Mr Damien Rogers, and the Tribunal notes that subsequently there may have been such an offer at the conciliation stage. The latter does not concern the Tribunal; the former does, because it seems to the Tribunal unlikely that part-time employment would be offered to an employee who was about to be dismissed on the ground of alleged incompetence. On this point the Tribunal accepts the evidence of Mr Damien Rogers. In the event the complainant rejected the suggestion. The Tribunal takes the view that the respondent has not succeeded in making out inefficiency or incompetence as a ground sufficient to justify the termination of the complainant's employment. The Tribunal is therefore of the view that the respondent has not succeeded in establishing either shortage of work or inefficiency or incompetence as providing a justification for the termination of the complainant's employment, and therefore turns to consider the evidence to support the complainant's case that age was a factor in the respondent's decision to terminate her employment. The complainant deposed that on 3 February Mr Jim Rogers said to her: "I think you should consider early retirement. We want to keep on the young one." Mr Rogers denied saying any such thing. At about the same time, as deposed by Ms Britt, Mr Damien Rogers, in conversation with her, said: "Annette is getting older and her health is not good. We want someone younger. You can do the same job that she did." Mr Damien Rogers denied saying the above. The complainant asserts that her recollection of the conversation with Mr Jim Rogers was supported by her diary entry for 3 February and the notes therein which she claims were made on 3 February and were therefore contemporaneous, a claim which was not contested in cross examination. The above does not constitute very powerful evidence in support of the complainant's assertion that her dismissal was compulsory retirement on the ground of age, but in the absence of any convincing alternative justification it assumes greater significance. The Tribunal accepts the complainant's recollection of events, supported as it is by the evidence of Ms Britt who, as a third party, had no personal axe to grind, and it is therefore of the view that the complainant's age was a factor in the respondent's decision to terminate her employment, no other justification having been established. The Tribunal therefore finds that Mrs Goodworth's complaint that she was compulsorily retired on the ground of age has been substantiated. A decision on remedies and costs is reserved. 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.