Hayne v YMCA NSW [2016] NSWCATAD 14

Civil and Administrative Tribunal New South Wales Medium Neutral Citation: Hayne v YMCA NSW [2016] NSWCATAD 14 Hearing dates: 10 November 2015 Date of orders: 25 January 2016 Decision date: 25 January 2016 Jurisdiction: Administrative and Equal Opportunity Division Before: N Hennessy LCM, Deputy President Decision: Leave is refused for the complaints of sex and age discrimination to proceed. Catchwords: LEAVE – complaints of sex and age discrimination in recruitment declined as lacking in substance – whether fair and just for the complaints to proceed – whether Tribunal hearing the matter likely to draw an inference that sex or age was a reason for the decision Legislation Cited: Anti-Discrimination Act 1977 (NSW) Cases Cited: Dutt v Central Coast Area Health Service [2002] NSWADT 133 Ekermawi v Administrative Decisions Tribunal of New South Wales [2009] NSWSC 143 Jones v Ekermawi [2009] NSWCA 388 Purvis v State of New South Wales [2003] HCA 62; (2003) 217 CLR 92 Seltsam Pty Ltd v McGuiness [2000] NSWCA 29; (2000) 49 NSWLR 262 Category: Principal judgment Parties: Scott Hayne (Applicant) YMCA NSW (Respondent) Representation: Applicant (self-represented)

Solicitors: HWL Ebsworth Lawyers (Respondent) File Number(s): 1510638 Publication restriction: Nil

reasons for decision

Introduction 1. Mr Hayne, a man in his mid-fifties, applied for a position as a senior lifeguard at Moruya War Memorial Pool which was operated by YMCA NSW. Mr Lindeboom interviewed him for the position but did not recommend him for appointment. YMCA did not appoint him to the position. Mr Hayne complained to the President of the Anti-Discrimination Board that the YMCA had discriminated against him on the grounds of sex and age in breach of the Anti-Discrimination Act 1977 (NSW). The YMCA denies discriminating against Mr Hayne and says that the reason he was not successful was because of comments he made during the interview. 2. The President declined the complaint on the basis that it was lacking in substance: Anti-Discrimination Act, s 92(1)(a). When that happens, the complainant must apply to the Tribunal for permission or 'leave' for the complaint to go ahead: Anti-Discrimination Act, s 96. In this case there is insufficient evidence on which an inference could be drawn that even one of the reasons for refusing to appoint Mr Hayne was his age or his sex. YMCA has provided a credible explanation for their decision. I have refused leave in this case because the complaint lacks substance and it would not be fair or just for it to proceed.