CITATION: Wells v Glen Innes Severn Council [2010] NSWADT 281 DIVISION: Equal Opportunity Division APPLICANT Allan Wells PARTIES: RESPONDENT Glen Innes Severn Council FILE NUMBER: 101070 HEARING DATES: 3 August 2010 SUBMISSIONS CLOSED: 3 August 2010 DATE OF DECISION: 25 November 2010 BEFORE: Hennessy N - Magistrate (Deputy President) CATCHWORDS: LEAVE – allegations of disability and age discrimination - part of complaint outside period - part of complaint lacking in substance - fair for remainder of complaint to proceed LEGISLATION CITED : Administrative Decisions Tribunal Act 1997 Anti-Discrimination Act 1977 CASES CITED: Ekermawi v Administrative Decisions Tribunal of New South Wales & Ors [2009] NSWSC 143 Jones & Anor v Ekermawi [2009] NSWCA 388 APPLICANT J Alewood, counsel REPRESENTATION: RESPONDENT P Bhatt, industrial officer Leave is granted for that part of the applicant's complaint to proceed that relates to not being offered employment as a Plant Operator (Loader) in November 2008 ORDERS: Leave is refused for the remainder of the applicant's complaint to proceed The matter is listed for case conference on 19 January 2011 at 10:00am. REASONS FOR DECISION Introduction 1 Mr Wells has applied to the Tribunal for permission for his complaints of age and disability discrimination to proceed even though the President of the Anti-Discrimination Board (the Board) declined those complaints as lacking substance: Anti-Discrimination Act 1977 (AD Act), s 96. Mr Wells was born in December 1953 and was 55 years old at the time he complained to the Board in November 2009. He started work with the Glen Innes Severn Council (the Council) as a Skilled Construction Worker (Bridges) in 2006. In December of that year he injured his shoulder at work. He submitted a workplace injury claim which was accepted by the Council's insurer. Mr Wells was not able to perform his pre-injury duties and returned to work on restricted duties in March 2007. 2 In June 2007, while working briefly under the supervision of Mr Gaden, Mr Wells says that Mr Gaden made certain remarks including, "You are too old to work here; you should be on a pension." Mr Gaden's version of events is that, at times, he did make 'smart' remarks such as, "Come on old fella, better get you to work." Mr Gaden said that these remarks were said in a joking, not a derogatory, manner. Mr Wells says that they were made in a cruel and malicious manner. 3 By January 2008 Mr Wells' return to work plan had identified the desirability of him undergoing further training in order to obtain a Heavy Rigid (HR) licence. An HR licence is required to drive certain heavy rigid vehicles. HR licences, which are obtained through the Roads and Traffic Authority, require a person to pass a knowledge test as well as a driving test. Mr Wells says that the Council did not make available a suitable heavy vehicle to allow him to practise driving so that he could pass the driving test. 4 In early 2008 Mr Wells applied for a vacant Loader Driving position. He said that Mr Jillet, his supervisor at the time, told him that Mr Gaden had said he did not want 'injured workers' like Mr Wells on his crew. Mr Wells was not appointed to the position. 5 In March 2008 his rehabilitation provider, Procare Injury Management and Prevention, advised him that if he did not obtain his HR licence, his chances of redeployment within Council were minimal. In April 2008 Mr Wells' doctor issued a Permanently Modified Duties Certificate. 6 In May 2008, Council advised Mr Wells that there were a number of positions that were likely to be available in the next few months and that he should consider applying for them. By that time Mr Wells had passed the knowledge test component of the HR licence. Council alleges that a few months later he attempted the driving component but failed the test. Mr Wells did not deny that that was the case. 7 In November 2008, the position of Plant Operator (Loader) was advertised and Mr Wells applied. A requirement of the position was that the applicant has an HR licence or have the capacity to obtain the licence within a reasonable time. Council considered 3 months to be a reasonable time. Mr Wells was interviewed but was not offered the position. On 30 December 2008 Council terminated Mr Wells' employment on medical grounds, as they were unable to identify appropriate duties for him to perform. Test for granting leave 8 Section 96 of the AD Act provides that a complaint that is referred to the Tribunal after it has been declined by the President, may not be the subject of proceedings before the Tribunal without the leave of the Tribunal. The applicant bears the onus of persuading the Tribunal that it is appropriate for leave to be granted. 9 In Ekermawi v Administrative Decisions Tribunal of New South Wales & Ors [2009] NSWSC 143 Schmidt AJ emphasised that leave applications should be determined on the basis of fairness and justice and went on to say that: Whatever the contest between the parties might be, the question of leave must be determined having in mind the purposes of the Act, which includes precluding unlawful discrimination and to permit those who have been so discriminated against, a remedy. Given that the legislation does not require all complaints to be investigated and dealt with, this means that while on the one hand, an obviously meritorious complaint will not be refused leave, where, for example on the other, it is apparent that the complaint lacks substance, or where the complaint is already being redressed elsewhere, leave may be refused, if that is what justice dictates. When deciding whether to grant leave, the Tribunal may have regard to the grounds on which the President may decline a complaint under s 92(1) of the AD Act, including that the complaint lacks substance or the nature of the conduct is such that further action is not warranted: Jones & Anor v Ekermawi [2009] NSWCA 388 at [60]. The complaint 10 There are three parts to Mr Wells' complaint: a) that the Council refused to provide him with practical training on suitable heavy vehicles to help him obtain his HR licence; b) that he was unsuccessful in his application for appointment to the position of Plant Operator (Loader) in November 2008; and c) that he was terminated from his employment in December 2008. 11 The Board only accepted those parts of Mr Wells' complaint that occurred after 27 October 2008: AD Act, s 89B(2). 12 Practical training. Mr Wells said he passed the 'knowledge test' aspect of the HR licence in May 2008 but needed training to learn to drive heavy vehicles so he could practise for his driving test. Mr Wells says that Council did not give him sufficient training or access to vehicles so that he could practise for his HR licence. He said he could not afford to hire the vehicles himself. Council said that throughout the injury management process, it tried to provide Mr Wells with suitable training to help him to obtain a permanent position with Council. Their policy is to encourage employees to pass the knowledge test first before providing them with the opportunity to practise driving the heavy vehicles. Mr Wells was advised in January 2008 that once he obtained that licence, he would be provided with training. 13 Application for Plant Operator job. In November 2008 Mr Wells applied for the position of Plant Operator (Loader). Two other existing employees also applied for the job. Each was given a practical assessment. Mr Wells scored 12 and the other applicants scored 11 and 9 respectively. Mr Wells says that Mr Jillet told him that the Works Manager had said that he was going to recommend Mr Wells for the job because he did exceptionally well in the practical assessment. Instead of being appointed directly to the position following the practical assessment, as Mr Wells had expected, he and the applicant who scored 11 on the practical assessment were asked to complete a written assessment and attend an interview. On the written assessment Mr Wells scored 7 and the other applicant scored 9. Council maintains that during the interview, both applicants were asked the same questions and their answers were scored. Overall, Mr Wells' total score was 36 and the successful applicant's score was 45. The successful applicant is a man in his late 20s who had had an HR licence for about 6 years. 14 The interview panel included Mr Gaden and two others. Mr Wells alleged that because Mr Gaden had expressed animosity towards him he should have declared a 'conflict of interest' and not sat on the interview panel. Mr Wells also said that another internal position advertised at the same time had been filled after the practical assessment, with no requirement for an interview. 15 Council's response was that a major impediment to Mr Wells securing a permanent position with the Council was that he did not have an HR licence. Council and Procare recommended that he obtain such a licence in January 2008. A specific warning was given by a Procare representative in March 2008 that if he did not obtain the licence his future with the Council was doubtful. Mr Wells had completed the knowledge component of the test by May 2008. Council says that Mr Wells was provided with opportunities to practise driving the trucks during rostered days off. According to the Council, Mr Wells gave verbal commitments to obtaining the HR licence but Procare commented to Council that he was not applying himself to the task. Council said that in considering Mr Wells' application for the loader position, the fact that he had not passed the driving component of the HR licence and had not re-sat the test prior to being interviewed, indicated to the selection panel that he did not have the capacity to obtain the licence within a reasonable timeframe. 16 Termination of employment. Following his unsuccessful application for the loader position, Council terminated Mr Wells' employment. His workplace injury meant that he could not perform his ordinary duties as a Skilled Construction Worker. President's reasons for declination 17 The reasons the President of the Board gave for declining the complaint as lacking in substance were that: The Board only accepted for investigation those parts of the complaint that were within the statutory time frame that it is, events from 27 October 2008. The alleged comments regarding the complainant's age and disability occurred outside this time frame. Regarding training: The complainant alleges that he did not receive sufficient training because of his disability and age. It appears that the relevant training was training for the HR driver's licence. The respondent has stated that it first encourages employees to pass the written test before giving them practical experience in its trucks, as it has a duty of care. The respondent has provided a plausible and non-discriminatory reason for not offering an HR vehicle to the complainant, as he had not passed his knowledge test in the relevant time frame. The complainant has not provided information to substantiate his allegation that any deficiency of training was based on his age or disability. Regarding recruitment for the position of Plant Loader (Operator): The complainant alleges comments by Mr Gaden about his age and disability (made outside the statutory time frame) show that Mr Gaden was biased during recruitment (which was within the statutory time). The information provided does not show on the balance of probabilities that the selection panel did not appoint Mr Wells to the position based on age or disability. The respondent has described the selection process and shown where the complainant's application was not as strong as the successful applicant's. But the complainant has not commented on the respondent's claims about interview performance. The complainant states that Mr Gaden should have advised the panel convenor of his conflict of interest, based on his attitude to Mr Wells' age and disability. There is no information to substantiate that there was a conflict of interest related to the complainant's age or disability, or that a conflict of interest was not declared based on his age or disability. The respondent has provided plausible and non-discriminatory reasons for not appointing the complainant to the position of Plant Loader (Operator), namely, the complainant's interview performance. The complainant has not provided information to substantiate that the selection process was based on age or disability. Regarding the determination unemployment: The complainant alleges that the decision not to appoint him as the Plant Loader (Operator) led to his termination from employment with the respondent. The respondent has stated that the complainant's position was terminated when, after an injury, he was unable to perform the duties of his position as a Skilled Construction Worker. The respondent stated that it advised the complainant that he may be terminated if he didn't obtain a different position. The complainant has alleged that the termination was a detriment resulting from a discriminatory recruitment process, rather than age or disability discrimination itself. There is insufficient information to substantiate the complainant's assertion that the respondent has treated him less favourably than how it would treat another employee with the complainant's interview performance and without the complainant's disability or age. On the basis of the information provided to the Board by the complainant and the respondent, I consider that the allegations of age and disability discrimination are lacking in substance. Legislative framework 18 Disability discrimination. The relevant provisions are s 49D(1)(b) and s 49D(2) of the AD Act: (1) It is unlawful for an employer to discriminate against a person on the ground of disability: . . . (b) in determining who should be offered employment, (2) It is unlawful for an employer to discriminate against an employee on the ground of disability: (a) in the terms or conditions of employment which the employer affords the employee, or (b) by denying the employee access, or limiting the employee's access, to opportunities for promotion, transfer or training, or to any other benefits associated with employment, or (c) by dismissing the employee, or (d) by subjecting the employee to any other detriment. 19 Definition of discrimination. Section 49B defines discrimination on the ground of disability in the following terms: (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 (b) requires the aggrieved person to comply with a requirement or condition with which a substantially higher proportion of persons who do not have that disability, or who do not have such a relative or associate who has that disability, comply or are able to comply, being a requirement which is not reasonable having regard to the circumstances of the case and with which the aggrieved person does not or is not able to comply. 20 Section 49B(1)(a) defines what is known as 'direct' discrimination. At least one of the reasons for the treatment must be the person's disability even if that reason was not the dominant or a substantial reason for the treatment: AD Act, s 4A. Section 49B(1)(b) defines what is known as 'indirect' discrimination. My understanding of this complaint is that Mr Wells is complaining of 'direct' discrimination. Parallel provisions apply to age discrimination: see ss 49ZYB(1)(b), 49ZYB(2) and 49ZYA. Practical training 21 For Mr Wells to prove that he had been discriminated against on the ground of age or disability, in being refused training on heavy vehicles, he would have to prove that the conduct occurred within the period of the complaint and that: a) he has a disability as defined in s 49A and s 4 of the AD Act or is of a particular age or age group; b) Council denied him access to or limited his access to opportunities for training or for any other benefits associated with employment or subjected him to a detriment; c) that treatment was less favourable than the Council treated or would have treated a person without Mr Wells' disability or who was of a different age or age group in the same or similar circumstances; and d) at least one of the reasons for that treatment was Mr Wells' age or disability. 22 Anything that occurred prior to 27 October 2008 is not within the period of the complaint as accepted by the Board and referred to the Tribunal: AD Act, s 89B and 95. Mr Wells passed the knowledge component of the HR licence in May 2008. From that time he was eligible to receive training on heavy vehicles. By the end of October 2008, Mr Wells had sat the driving component of the HR licence. Consequently the conduct about which he complains, or the alleged inaction on the part of Council must have occurred between May 2008 and the end of October 2008. Any such conduct does not occur within the period of the complaint. This part of the complaint cannot succeed and it would not be fair to allow it to proceed. Application for Plant Operator position 23 For Mr Wells to prove that he has been discriminated against on the ground of age or disability, in not being offered the position he applied for in November 2008, he would have to prove that: a) he has a disability as defined in s 49A and s 4 of the AD Act or is of a particular age or age group: b) Council did not offer him employment in that position; c) that treatment was less favourable than the Council treated or would have treated a person without Mr Wells' disability or who was a different age in the same or similar circumstances; and d) at least one of the reasons for that treatment was Mr Wells' disability or age. 24 Mr Wells has a disability and was 55 years old in November 2008. I accept for the purposes of these proceedings that Council did not offer him the loader driver position and that the successful applicant was a much younger man who did not have Mr Wells' disability. If the matter proceeds to hearing the issue would then arise as to whether one of the reasons Mr Wells was not successful was his disability or his age. Mr Wells says he was given the impression that because he had performed well in the practical assessment, he would be appointed to the job and that is what had happened in another case. He was also suspicious that since Mr Gaden had made what he regarded as derogatory comments about his age and disability, those views affected the panel's decision. Council provided evidence about the selection process which tends to support their contention that the position was awarded on merit. Given the conflict in the evidence and the significance of the decision for Mr Wells, it is fair that leave be granted for this part of the complaint to proceed. Dismissal 25 For Mr Wells to prove that he had been discriminated against on the ground of disability, in being dismissed from employment, he would have to prove that: a) he has a disability or is of a particular age or age group: AD Act , s 49A and s 4; b) Council dismissed him; c) that treatment was less favourable treatment than Council treated or would have treated a person without Mr Wells' disability or who was of a different age or age group; and d) that treatment was on the ground of Mr Wells' disability or age. 26 There is no dispute that Mr Wells was dismissed from his employment because his injuries prevented him from doing his previous job of Skilled Construction Worker (Bridges). It is apparent that it was Mr Wells' disability, and not his age, that was the reason for the dismissal. It is a defence to discrimination in relation to being dismissed from employment on the ground of disability that Mr Wells could not do the inherent requirements of the particular position. Alternatively, it is a defence if Mr Wells would, in order to carry out the inherent requirements of the particular position, require services or facilities that are not required by people without his disability and the provision of those services or facilities would not impose unjustifiable hardship on the respondent: AD Act, s 49D(4). Mr Wells could not do the inherent requirements of the position of Skilled Construction Worker nor did he submit that Council had not provided him with services or facilities that would have enabled him to do that job. Consequently, Council would have a complete defence to any claim of disability discrimination in relation to the dismissal. For that reason, it would not be fair or just to allow this part of the complaint to proceed. Order Leave is granted for that part of the applicant's complaint to proceed that relates to not being offered employment as a Plant Operator (Loader) in November 2008. Leave is refused for the remainder of the applicant's complaint to proceed. The matter is listed for case conference on 19 January 2011 at 10:00am. 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.