Equal Opportunity Tribunal of New South Wales CITATION: Macdonald -V- Home Care Service Of N S W [1996] NSWEOT COMPLAINANT: Mr Grant MacDonald RESPONDENT: Home Care Service of New South Wales NUMBER: 19 of 1996 Mr R J Bartley AM ( Judicial Member ) TRIBUNAL: Ms S Clayton Mr L Lau GROUNDS OF COMPLAINT: Discrimination in employment of the ground of age, sex and presumed disability DATES OF HEARING: 10/28/1996; 10/29/1996 DATE OF JUDGMENT: 10/29/1996 Complainant: In-person LEGAL REPRESENTATIVES: Respondent: Freehill Hollingdale & Page (Solicitors) Mr C Barton (Counsel) JUDGMENT IN FAVOUR OF: Respondent TRIBUNAL: On 22 February 1995 a complaint was received by the Anti-Discrimination Board from Mr Grant MacDonald against the Home Care Service of NSW. Mr MacDonald complained that he was discriminated against in his applications for employment with the Home Care Service of NSW on the grounds of his sex, age and presumed disability. He requested at the interview to add some further grounds to his complaint but the Tribunal took the view they could not be added as they had not been considered by the Anti-Discrimination Board. However, it was agreed to consider them as relating to the grounds already set out. Mr MacDonald was 49 years of age at the time of his application and had undergone a spinal curvature correction in 1971. The following facts are agreed between the Parties: 1. The Respondent is an employer, a Community Service Provider, funded by contributions of customers and the joint NSW and Commonwealth Governments' Home and Community Care Program. 2. On or about 19 January 1995 the Complainant made formal application to the Home Care Service of NSW for a permanent Field Worker position at the Northern Beaches Branch, Dee Why. 3. The Complainant was interviewed for that position by Ms Helen Robinson, the Branch Manager, on Wednesday 25 January 1995. 4. On Friday 27 January 1995, the Complainant was told the position had been filled but was offered casual work by Ms Sue Bowen, the Acting Branch Manager. 5. Ms Bowen admits that on 1 February 1995 she made statements similar to those alleged by Mr MacDonald: "It has gone to a younger person with good experience in domestic work and in working with people with disabilities", " We have offered the position to a younger person as they'd be fitter to do the job", "We looked first at whether they had many any compensation claim", "I really shouldn't speak for the others. I haven't been in the job very long myself", and "Many clients prefer a female worker". 6. On the afternoon of Wednesday 1 February 1995 the Complainant contacted the Head Office of the Home Care Service and spoke to Mr Rob Watkins, Industrial Officer, about concerns regarding the lack of interview panel and attitudes expressed by Ms Bowen, the Acting Branch Manager. 7. On or about Monday 6 February 1995 the Complainant was notified by Ms Marie-Anne Hawes of the Employee Relations Section at the Head Office that the interview/selection procedure for this position was declared 'null and void', that it would be re-advertised and that he would be invited to re-apply. 8. The position was re-advertised and the Complainant was interviewed in March 1995 by a panel comprising Ms Helen Robinson (Convenor), David Yuille and Andrew Szemenye. 9. The Complainant had stated clearly in separate letters to the Convenor and panel that he wished to be assessed for eligibility only, and if successful, placed on an eligibility list for the next six months. 10. The Complainant was advised he was unsuccessful. No eligibility list was created. There were in fact two unsuccessful applicants in the selection process, Grant MacDonald and Ms Vicki Quinlan. The Selection Committee commented on each as follows: "Vicki Quinlan: ° Unavailable to work required hours - did not meet criteria #2. ° Limited experience with personal care tasks. Grant MacDonald: ° Unavailable to work required hours - did not meet criteria #2. ° Limited exposure to/experience with a broad range of customers. ° Limited housekeeping experience." Whilst acknowledging that she made remarks similar to those alleged by the Complainant, Ms Bowen was not responsible for the selection or non-selection of Mr MacDonald on 25 January 1995. The Complainant submits her remarks illustrate the 'attitudes' in the Home Care Service. The evidence heard by the Tribunal does not substantiate this submission by Mr MacDonald. Ms Robinson, the Branch Manager, agreed many females using the Service requested from time to time that they be given female carers but denied this was a factor in her failure to select Mr MacDonald at either interview following the two advertisements. Mr MacDonald claims that he has been discriminated against in some way by the selection process being started over again but this is not clear to the Tribunal. We have heard each member of the Selection Committee which interviewed applicants on 24 March 1995 and read all the accompanying documentation. Mr MacDonald was not ready to start work at that time but wanted the Service to place him on an eligibility list until he was ready and able to commence work. We are satisfied on the evidence that the Committee was entitled not to select Mr MacDonald for the reasons given, and as set out in the judgment. The Home Care Service of NSW, in the manner in which they dealt with the application of Mr MacDonald did not breach the Anti-Discrimination Act. In fact from a close examination of a file of documents (Marked Exhibit '10') it is clear from any 'file notes' made at the time; copies of letters written, and other material therein, that the Service dealt with Mr MacDonald's applications in a proper and careful manner. There is no suggestion of any discrimination on the basis of age, sex or presumed disability, in the evidence. In fact the question of gender bias was only raised by Mr MacDonald himself in his application when he said: "I believe not many males apply for such positions. I ask that in these enlightened days of gender equality (if all other things are equal) you might welcome my possible future employment." Ms Robinson gave evidence that compensation claims were a heavy burden on the Service and hence all job applicants are asked about prior compensation claims. It appears, however, that if Mr MacDonald had met all other criteria, except the condition of his back, providing he produced medical evidence that he was fit for the job, any old back injury would not have prevented him being appointed to the position he sought. There is no substance in his complaint he was discriminated against on the grounds of 'presumed disability' or for that matter 'disability'. As to the grounds sought to be added to the application, Mr MacDonald says he was discriminated against as he had an association with a relative with a disability. This is not correct, the only reason that this matter was raised (that he was caring for relatives with disabilities) was because it was used by Mr MacDonald as the reason he was unavailable to work as required. The Complainant requested the addition of a further ground as follows: "The Complainant claims the non-preparation of an eligibility list after the interview in March and the failure of the Respondent to include him or consider him for inclusion on that list was discrimination on the grounds of ... unlawful victimization in breach of s50(1)(c) in that I was subjected to the detriment of not being placed on an eligibility list because I had in the circumstances described in point 7 above and further conversations with the employees of the Respondent alleged that the Respondent had committed an act which would amount to a contravention of the Anti-Discrimination Act." As indicated earlier, the Home Care Service dealt with Mr MacDonald's complaint meticulously. The comments of Ms Bowen did not effect his application for employment once the General Manager of the Home Care Service of NSW had declared the original Northern Beaches Branch's selection null and void. As the Selection Committee found he did not meet the selection criteria for the position, it follows he could not be placed on any eligibility list (if there was to be one) for this reason. The complaint is dismissed. The Respondent has not pressed for costs and the Tribunal directs that each party pays their own costs. However, it is pointed out that there are circumstances which could exist in cases such as this one, which would justify the Tribunal awarding costs against an unsuccessful Complainant. 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.