Allen v Newlands Coal Pty Ltd & See (No 2) [2014] QCAT 522

CITATION: Allen v Newlands Coal Pty Ltd & See (No 2) [2014] QCAT 522 PARTIES: Michael Sean Allen (Applicant) v Newlands Coal Pty Ltd (First Respondent) Justin See (Second Respondent) APPLICATION NUMBER: ADL034-13 MATTER TYPE: Anti-discrimination matters HEARING DATES: 27 and 28 November 2013 HEARD AT: Townsville DECISION OF: Member Browne DELIVERED ON: 14 March 2014 DELIVERED AT: Brisbane ORDERS MADE: 1. The application is dismissed. CATCHWORDS: ANTI-DISCRIMINATION – allegations of discrimination and victimisation – attributes of age – whether applicant refused workplace training because of his age Anti-discrimination Act 1991 (Qld), ss 7, 9, 10, 15, 129 and 130 APPEARANCES and REPRESENTATION (if any): APPLICANT: Mr Michael Allen, self represented RESPONDENTS: Newlands Coal Pty Ltd and Justin See represented by Mr Matthew Smith, Solicitor, of Sparke Helmore Lawyers -- 1 of 13 -- 2 REASONS FOR DECISION [1] Mr Allen, aged 52 years, has several years experience in driving trucks and loaders in various mines in Queensland. He also has experience in training new employees on equipment such as loaders and trucks to be used in the mines. [2] Newlands is in the business of mining and employs suitable people to undertake work in various open cut mine pits located at Eastern Creek, McLaren, Saddlers, Somerland and Wollombi. [3] Mr Allen commenced employment with Newlands as a labour hire employee on 22 February 2010. He became a permanent employee on 23 February 2011 and his position was Level 1 Production Operator. [4] Mr Allen ceased employment with Newlands on 5 February 2013, having tendered his resignation on 27 January 2013. Approximately 5 months after Mr Allen left Newlands some employees (of Newlands) were assessed and then targeted for redundancy. [5] Prior to leaving Newlands Mr Allen filed an equal opportunities complaint on 21 August 2012 (the Newlands complaint). He later filed a complaint on 23 October 2012 in the Anti-Discrimination Commission (the complaint) in relation to allegations of discrimination and victimisation on the basis of the attribute of age, in contravention of the Anti-Discrimination Act 1991 (Qld) (the Act). [6] The complaint arises out of events that Mr Allen alleges took place during his employment with Newlands; in particular alleged conduct by a former employee and Mr Allen’s acting shift supervisor, Neil Hamilton, and the current production superintendent, Justin See. Mr Hamilton is no longer an employee of Newlands. Mr See is, however, currently employed by Newlands. [7] On 24 April 2013 the Anti-Discrimination Commission referred the complaint to the Queensland Civil and Administrative Tribunal. The Tribunal in hearing the complaint must be satisfied that there has been a contravention of the Act. Mr Allen has the burden of proving, on the balance of probabilities, that there has been a contravention.1 [8] The matter proceeded to a hearing over 2 days. Mr Allen relies on his statements tendered at the hearing and his oral evidence. Affidavit material was prepared and tendered at the hearing by Mr Justin See; and Ms Mary Whitney, human resource advisor, on behalf of Newlands. Mr See and Ms Whitney also gave oral evidence at the hearing. Final written submissions were prepared by the parties and received by the Tribunal on 16 December 2013 in accordance with directions made by the Tribunal on the last day of the hearing. 1 Anti-Discrimination Act 1991 (Qld) s 204. -- 2 of 13 -- 3 The Complaint and the Allegations [9] It is accepted that training on an excavator is a desirable skill to have in the mining industry; and it takes a long time to learn how to operate the equipment. Mr Allen along with other employees in Newlands wanted the opportunity to be trained on an excavator. [10] Mr Allen contends that in or about June 2012 he was refused an opportunity to be trained on an excavator, also known as a digger, because of his age.2 Mr Allen has made allegations of direct discrimination relating to a statement allegedly made by Neil Hamilton, former employee, in that Mr Hamilton said to him: “You are too old”; and a statement allegedly made by Justin See, production manager. [11] In or about June 2012 during a meeting with Justin See, production manager, Mr Allen contends that Mr See said words to the effect: “I want younger go getters on diggers”. The words, “I want younger go getters”, are alleged to have been said by Mr See to Mr Allen a number of times during the meeting and at a further meeting with Mr See. [12] Mr Allen alleges that Mr See and Newlands as the employer discriminated against him on the basis of his age in that he was refused training on an excavator. Section 10 of the Act provides that “direct discrimination” on the basis of an attribute such as age happens if a person treats, or proposes to treat, a person with an attribute less favourably than another person without the attribute is or would be treated in circumstances that are the same or not materially different. [13] Mr Allen refers to other Newlands’ employees who wanted to be trained on an excavator: Kirra (aged in her 20’s), Wayne Matheson (aged in his late 30’s) and Jason Ussher (aged in his early 40’s). Mr Matheson and Mr Ussher were given the opportunity to be trained on an excavator but Mr Allen was not. Mr Allen alleges that Mr Matheson and Mr Ussher were younger than him and were also favoured by Mr Hamilton. Furthermore, Mr Allen claims Mr Matheson and Mr Ussher were employed with Newlands for a period of time less than his period of employment with Newlands. [14] Mr Allen also raises allegations of victimisation against Mr See and Newlands as the employer in that he alleges he has been treated differently as a result of making a complaint. In particular he contends that he was refused a period of carers leave for 4 and 5 October 2012 (inclusive); compassionate leave for 29 and 30 November 2012 (inclusive); and was required to produce a certificate in relation to a period of leave taken by him to attend generic induction training on 17 January 2013. Mr Allen also contends that after making a complaint he was placed on trucks, not machinery, and was moved from “pit to pit”; in particular he was moved from Saddlers pit to Wollombi pit. 2 Section 7 of the Anti-Discrimination Act 1991 (Qld) prohibits discrimination on the basis of age. -- 3 of 13 -- 4 [15] Section 129 of the Act makes it unlawful for a person to victimise another person. Section 130 of the Act provides that victimisation happens if a person (such as the respondents) does an act, or threatens to do an act, to the detriment of another person (such as the applicant) in circumstances where, for example, the other person (the applicant) alleges a person (the respondents) has contravened the Act or makes a complaint under the Act. [16] Mr Allen made a complaint at first instance to Newlands on 21 August 2012. Ms Whitney in her sworn affidavit refers to the outcome of the Newlands complaint and states that there was evidence to support the claim that Mr Hamilton had made a comment about Mr Allen’s “age” but no further action was taken. In relation to the complaint made against Mr See, there was no evidence of any inappropriate comments by Mr See and the allegation was therefore unsubstantiated.3 By letter dated 10 October 2012, Newlands wrote to Mr Allen stating: In respect of your complaint against Mr Hamilton, there is evidence to support your claim regarding Mr Hamilton’s comment about your age. We acknowledge that this comment was inappropriate and against Xstrata Coal EEO policy. We believe that this is an isolated incident and reiterate that Newlands will not tolerate and seek to eliminate any form of discrimination in the workplace. In this instance Mr Hamilton is no longer employed by Newlands, no disciplinary action can be taken against him.4 The allegations relating to Neil Hamilton [17] Mr Allen relies on the investigation material prepared in relation to the Newlands complaint to support his contention that Mr Hamilton admitted that he said the words (as alleged). Mr Allen conceded during cross- examination that he was not present at the meeting conducted by Newlands during which time Mr Hamilton allegedly made the admission. [18] The relevant material prepared by Newlands includes details of meetings that took place during the investigation of the Newlands complaint. The material, tendered at the hearing, forms various attachments included in the affidavit sworn by Mary Whitney.5 There are documents detailing meetings that took place between Ms Whitney and Jim Viero, mining manager, with various other people including, amongst others, Mr Allen on 6 September 2012, Mr Hamilton on 8 September 2012 and Mr See on 21 September 2012. [19] In the document detailing the meeting that took place with Mr Hamilton on 8 September 2012, Mr Hamilton is reported to have admitted saying the words as alleged by Mr Allen as well as other words allegedly said by Mr See to Mr Hamilton. The following is an extract from the meeting document: 3 Exhibit marked “9”, [56]. 4 Ibid, attachment “5”. 5 Exhibit marked “9”. -- 4 of 13 -- 5 4. [Ms Whitney] – did you tell [Mr Allen] that he was “too old”. 5. [Mr Hamilton] – yes I did. I had asked [Mr See] about who should go on digger training and mentioned [Mr Allen] and KP [Kirra] as they had asked me for it. [Mr See] said “Mick is too old” and “Kirra can wait two years”. [Mr See] told me he wanted “younger go getters”.6 [20] Mr Allen gave evidence about the circumstances of the alleged discrimination stating that he went to the “crib room” (recreation room) and saw Mr Ussher and Mr Matheson were seated down the other end completing documents identified by Mr Allen as training sheets. Mr Hamilton allegedly walked into the room and Mr Allen states that he said to him (Mr Hamilton): “What’s going on, the boys [Mr Ussher and Mr Matheson] shouldn’t be doing that”. Mr Allen states that Mr Hamilton replied: “You’re too old”. Mr Allen states that Mr Hamilton said those words “straight to [him]”. Mr Allen claims that Mr Hamilton later apologised to him for saying the words. [21] Mr Allen conceded during cross-examination that by completing the training forms as he saw Mr Ussher and Mr Matheson to do on the day of the incident, entitled them to effectively start training straight away subject to completing certain questions on the form. He conceded that the decision to train an employee, such as Mr Ussher and Mr Matheson, on a piece of equipment would be made before completing the paperwork and once you have the paperwork you are effectively as stated by Mr Allen, “doing the training”. [22] Mr Allen gave evidence that he had asked Mr Hamilton about 2 rosters prior to their conversation in the crib room, to be trained on a digger (excavator). Mr Allen was not given this opportunity instead Mr Hamilton selected Mr Ussher and Mr Matheson for training. Mr Allen conceded that both Mr Ussher and Mr Matheson are “good operators” but states they were in his opinion inexperienced. He also conceded that they (Mr Ussher and Mr Matheson) are good friends with Mr Hamilton and this may also be part of the reason “they got picked” to do the training. [23] I am satisfied that it is more probable that Mr Hamilton said the words as alleged by Mr Allen. There is evidence contained in the Newlands complaint investigation material in relation to a meeting with Mr Hamilton during which he made an admission to saying the words and Newlands in determining the outcome of the Newlands complaint found there was evidence to support Mr Allen’s claim as it relates to Mr Hamilton. Mr Hamilton’s employment was terminated on 27 September 2012 prior to being demoted on 29 August 2012 by Mr See from acting supervisor to operator. The allegations relating to Justin See [24] It is non-contentious that Mr Allen went to Mr See soon after his meeting with Mr Hamilton. Mr Allen gave evidence that he went to Mr See because 6 Exhibit marked “9”, attachment “5”. -- 5 of 13 -- 6 he wanted to discuss the conversation he had with Mr Hamilton- in particular that Mr Hamilton saying to him, “you’re too old” is discrimination. [25] Mr Allen states that he told Mr See about Mr Hamilton giving paperwork to Mr Matheson and Mr Ussher and that Mr Hamilton had said to him: “You’re too old”. Mr Allen states that Mr See spoke directly to him and said: “I want younger go getters”. Mr Allen interpreted this to mean that Mr See wanted people younger than him and he (Mr Allen) was too old. In giving his evidence Mr Allen states that he had never seen an employee working in his pit aged over 50 being trained on an excavator. Mr Allen agreed in giving his evidence that Mr See had indicated to him at the end of the meeting that he would discus the matter with Mr Hamilton. [26] Mr Allen alleges that the words were again said to him by Mr See at a further meeting that took place after Mr See had discussed the matter with Mr Hamilton. Mr Allen conceded during cross-examination that Mr See also referred to him going to Africa and that he had been training (and approving) his wife on different machinery; and that Mr See also stated that he (Mr Allen) was the only trainer at the pit. Mr Allen also conceded that it was possible that Mr See thought he was a competent trainer and wanted to keep him on as a trainer. [27] Mr See denies that he knew Mr Allen personally prior to him (Mr Allen) calling him in or about June 2012, about 2 to 3 days after Mr Allen spoke to Mr Hamilton, to arrange a meeting.7 Mr See states that as a mining superintendent he is responsible for supervisors, such as Mr Hamilton, within the mine who report to him. The supervisors give directions to operators, such as Mr Allen. At the time the complaint was made by Mr Allen, Mr See states that he did not know all of the operators personally as he was responsible for 8 supervisors across 4 pits and there were approximately 280 operators and 4 leading hands working in the pits. He also states that every 12 months one third of the workforce would leave in that people would either resign or not come back to work and it was therefore a challenge to effectively keep track of the operators. [28] Mr See states that he met with Mr Allen in the Wollombi crib. Mr Allen wanted to know why he was not selected for training. Mr See denies that Mr Allen was not offered training because of his age. Mr See states that there are other people aged 70 years working at the mine and employees at Newlands over the age of 50 who have been trained on equipment including excavators. [29] Mr See met with Mr Allen again the next day having agreed to discuss the issues with Mr Hamilton. Mr See states, in giving his oral evidence, that the discussion between him and Mr Allen “got heated”. Mr See again denies saying to Mr Allen that he wants “younger go getters”; or that Mr Allen was not trained because of his age. Mr See agrees he raised issues with Mr Allen, during their meeting, about him possibly moving to Africa for 7 Exhibit marked “7”, [53]. -- 6 of 13 -- 7 work and that he had been training his wife, because these were issues discussed with him by Mr Hamilton in their earlier meeting. [30] I found Mr See to be honest and reliable in giving his evidence. He conceded during cross-examination that he might have said to Mr Allen that he wants younger people to be given an opportunity. Mr See in his affidavit also states that he told his supervisors that he wanted younger operators to be given an opportunity to be trained on an excavator as part of succession planning for operators and Newlands.8 This is consistent with what Mr See is reported to have said about training employees at a meeting held for the purposes of the Newlands complaint. An extract of the meeting held with Mr See on 21 September 2012 is as follows: [Justin See] was asked how does he determine selection for training on the digger. [Justin See] – I have said to my supervisors that if they have younger people who they can identify as potential digger operator to give them an opportunity. The criteria for “potential employees” are those that have good attendance, work ethic and are eager.9 [31] I am not satisfied that Mr See said the words as alleged by Mr Allen. I attach no weight to the statement allegedly made by Mr See to Mr Hamilton reflected in the Newlands investigation material- in particular the document related to Mr Hamilton’s meeting on 8 September 2012 where Mr Hamilton is reported to have stated that Mr See made certain comments about Mr Allen. I accept Mr See’s evidence that he did not know Mr Hamilton personally prior to meeting with him in June 2012. It is therefore not plausible that Mr See (not knowing who Mr Allen was at the time) would say to Mr Hamilton that, as allegedly stated, “Mick (Mr Allen) is too old” (to do training). Was Mr Allen refused excavator training because of his age? [32] Notwithstanding my finding that the allegations as they relate to Mr See have not been substantiated, I am not satisfied that Mr Allen was refused training on an excavator because of his age. [33] It was, at the relevant time concerning Mr Allen’s contentions, Mr Hamilton’s role (as supervisor) to approve excavator training. There is evidence before me of the procedures that were in place in relation to approval of training for excavators as at 15 May 2012. That is, a supervisor could approve an operator’s training on an excavator. Prior to 15 May 2013, the superintendent and the area supervisor had to approve the training.10 There is also evidence of Newlands’ procedures to train an employee and these procedures do not include age as being a relevant consideration.11 8 Exhibit marked “7”, [66]. 9 Exhibit marked “9”, [6]. 10 Exhibit marked “7”, [24]. 11 Exhibit marked “9”, [11]. -- 7 of 13 -- 8 [34] Mr See in his affidavit states that notwithstanding Newlands’ procedures for training, Mr Hamilton did consult him about approving training for Mr Matheson and Mr Ussher and that this was otherwise in keeping with his role to provide “support and information to those reporting to him”.12 Mr See states in his affidavit that Mr Hamilton said to him: “Matheson and Ussher have prior experience on excavators”.13 Mr See states that he did not recall being told by My Hamilton that Mr Allen wanted to be trained on the excavator and Mr See did not, at the time he spoke to Mr Hamilton, know Mr Allen personally. Mr See concedes in his affidavit that he spoke to Mr Matheson in one of the pits some months later and was informed by him (Mr Matheson) that he did not have prior experience on the excavator. Mr See states: At this time it became clear to me that Hamilton had made a representation to me during our discussion in relation to training on the excavator that both Matheson and Ussher had prior experience on the excavator and this was false, at least in the case of Matheson.14 [35] Mary Whitney gave evidence about training requirements. She states that training opportunities are provided to employees including excavator training on a “needs basis”.15 Her evidence is that age is not a factor in relation to whether an employee is trained and the decision to train an employee is made by the supervisor. She states that Newlands have in place an equal employment opportunity (EEO) policy that provides that age cannot be taken into account in determining whether an employee is trained.16 [36] Ms Whitney also gave evidence about EEO training as part of the induction process at Newlands confirming that both Mr Hamilton and Mr Allen received training on EEO, harassment and discrimination as part of their induction process.17 [37] I am not satisfied based on the evidence before me that Mr Allen was treated less favourably because of his age than other employees in being refused training on an excavator. Mr Allen was given many opportunities at Newlands to be trained on other equipment. Furthermore there is evidence that Newlands gave other employees aged 50 years and over the opportunity to be trained on an excavator. It is also accepted that another employee (Kirra aged in her 20’s) who is younger than Mr Matheson and Mr Ussher and who was working in the same pit as Mr Allen was denied the opportunity to be trained on an excavator. [38] The evidence relevant to Mr Allen’s training opportunities and training of other employees at Newlands on equipment including an excavator is contained in Ms Whitney’s affidavit. The affidavit attaches a copy of Mr 12 Ibid, [29]. 13 Exhibit marked “7”, [34], [36]. 14 Ibid, [41]. 15 Exhibit marked “9”, [11]. 16 Exhibit marked “9”, attachment “12”. 17 Ibid, [57]. -- 8 of 13 -- 9 Allen’s competency report that shows Mr Allen obtained a number of competencies during his employment with Newlands including loaders and trucks.18 There are also a number of employees aged over 50 who were given approval to train on excavators by Mr Hamilton or Mr See during 2011 and 2012.19 Allegations of Victimisation [39] In relation to leave taken on 4 and 5 October 2012, I am not satisfied the allegation has been substantiated. Mr Allen accepts that a certificate must be produced for all sick leave taken with a duration of 2 days or greater and this is reflected in the Newlands Surface Operations Individual Employment Agreement.20 Mr Allen did not submit a leave form until 6 October 2012.21 Mr Allen conceded that the leave was subsequently approved as stated on the form on the basis of “carers leave” so a medical certificate was not required. Ms Whitney, in giving her evidence, confirms that she approved Mr Allen’s leave for 4 and 5 October 2012. [40] In relation to leave taken on 29 and 30 November 2012 Mr Allen contends that Mr See crossed out compassionate leave and made Mr Allen take annual leave. I am not satisfied the allegation has been substantiated. [41] Ms Whitney, in giving her evidence, states that Mr Allen’s application for leave was received by Newlands with a funeral notice attached for a person who was identified as not being a member of Mr Allen’s family. Mr Allen was therefore not entitled to compassionate leave. Ms Whitney states in her affidavit that she made enquiries with the payroll manager about the reason why Mr Allen’s leave request was changed by crossing out “compassionate leave” and Ms Whitney was advised that this would have been done by the payroll manager and not personally by Mr See, after making enquiries with Mr Allen.22 [42] Mr Allen conceded during cross-examination that if there was a Newlands’ policy or procedure in place that requires leave to be taken in a certain way then that policy should be followed. Mr Allen did not dispute that he had submitted his leave application for compassionate leave with a copy of a funeral notice for a person he was not related to (instead of his wife’s sister’s funeral). Mr Allen’s leave (taken as annual leave) was approved. [43] In relation to leave taken on 17 January 2013, Mr Allen contends that Mr See requested that he produce a “receipt” to prove he had done generic training. The request by Mr See to produce a receipt was, Mr Allen contends, victimisation. [44] There is no independent evidence before me to support Mr Allen’s contention that other employees who attended the generic training were 18 Ibid, [16]. 19 Bundle of approval to train documents were tendered at the hearing see Exhibit “10”. 20 Exhibit marked “9”, attachment “2”, p 10. 21 Ibid, attachment “17”. 22 Exhibit marked “9”, [83]. -- 9 of 13 -- 10 not required to produce a receipt. I accept the evidence of Mr See corroborated by Ms Whitney that general induction training remains valid for 5 years and is not necessary to enable an employee to continue working in the mines. I accept that it was appropriate to request Mr Allen to provide a receipt in circumstances where he had not provided the 4 weeks notice he was required to give to Newlands. This is consistent with a generic memorandum issued by Mr See to all employees in April or May 2012 referring to leave taken by employees with “little notice” and that 4 weeks notice of intention to take leave is required.23 [45] In relation to working at the pits Mr Allen contends that approximately 2 weeks after making the Newlands complaint he started being moved around from pit to pit. He states that this was “not ideal” and usually he, and other employees, are left working in the same pit. [46] Mr Allen in giving an explanation for why it is preferable to be left in the same pit referred to another employee who had an accident at a pit because he did not know the area. Mr Allen contends that there were a “couple of times” when he would be told to go over to Saddler’s pit because they needed a loader driver and then he would be told to stay at Wollombi pit. He states that he was moved during “stints” on numerous occasions and this was not satisfactory. [47] Mr Allen agreed during cross-examination that the supervisor determines at which pit an employee will be stationed. He also conceded that it was common practice for an employee to be moved from Wollombi to Saddler pit however he did state that most of the Saddler employees had been there a long time. Mr Allen also conceded during cross-examination that even though extra travel time was required (on a bus) when working at Wollombi pit there was no financial detriment to an employee working at Wollombi pit. [48] I am not satisfied the allegation as it relates to being moved from “pit to pit” has been substantiated. There is evidence before me of Mr Allen’s work “loads” performed across different pits for the period from February 2011 to February 2013 (inclusive).24 The schedule shows that Mr Allen spent a majority of time in Wollombi pit for the period from March 2011 to December 2011 and again spent time in the Wollombi pit in April 2012. [49] Mr See did not agree that he was responsible for Mr Allen’s working roster in terms of what machines he operated and which pit he was assigned to as part of his employment duties. Mr See gave evidence about operational issues in the pits stating that Wollombi pit is a “high priority pit” and that it is common practice for employees to be moved from pit to pit and from machine to machine, as needed, stating that this was a decision to be made by the supervisor. I accept Mr See’s evidence corroborated by the evidence of Ms Whitney that it is “common practice” that an employee 23 Exhibit marked “7”, attachment “18”. 24 Exhibit marked “ 7” attachment “19”. -- 10 of 13 -- 11 work at all pits.25 Mr See also states that operations were being slowed down in Saddler’s pit and moving towards Wollombi pit. Saddler’s pit ceased operation in February 2013. [50] In relation to being put on trucks, Mr Allen contends that usually once trained on certain equipment you are left on that “gear” until you get “competent” and this may take years. Mr Allen contends that after making the Newlands complaint he spent most of his time on a truck. He states for example that he spent 4 days on a dozer (period from 1 January 2012 to 10 January 2012) and 12 days on a front loader. Mr Allen argues that before making the complaint he spent “a fair bit” on a loader. Again Mr Allen refers to other employees such as Mr Ussher and Mr Matheson who he states where never working on trucks because they were trained to be competent on other equipment. [51] I am not satisfied the allegation has been substantiated. There is evidence before me of a schedule showing the time spent by Mr Allen on different pieces of equipment for the period from February 2011 to February 2013 (inclusive).26 There is also a schedule prepared by Newlands for the period from 1 July 2012 to 10 January 2013 (inclusive) after the Newlands complaint was made that shows the number of hours spent on different equipment across the Saddler’s and Wollombi pits.27 Mr Allen during cross-examination did not accept that he had spent the balance of time as a trainer stating that he was most likely cleaning equipment. Mr Allen did not accept that another explanation as to why he spent time working on trucks was that he was good at his job. [52] Ms Whitney in her sworn affidavit refers to Mr Allen’s roster that identifies each piece of equipment operated by Mr Allen. I accept the evidence of Ms Whitney that Newlands’ employment records show Mr Allen was required to operate trucks, dozers and loaders during his employment and this remained unchanged after Mr Allen lodged the Newlands complaint.28 Remedies sought by Mr Allen [53] Mr Allen was able to secure employment after leaving Newlands having accepted a position with another Xstrata mine. He states that he has now been told, however, that he is no longer wanted on other Xstrata sites. There is no evidence before me to support this contention. [54] During cross-examination, Mr Allen conceded that he was not asked to leave his employment by Newlands. Mr Allen states that his reason for leaving was that he felt “very uncomfortable” in his employment. Mr Allen states that he would have been entitled, however, to a redundancy if he had stayed at Newlands. 25 Exhibit marked “9”, [90]. 26 Exhibit marked “7”, attachment “22”. 27 Exhibit marked “9”, attachment “19”. 28 Exhibit marked “9”, [96]. -- 11 of 13 -- 12 [55] Mr Allen gave evidence that Mr Hamilton apologised to him in about September or October 2012. Mr Allen states that he is not seeking an apology from Newlands or Mr See. He is asking the Tribunal to order the first respondent pay him an amount he would have been entitled to had he been offered a redundancy plus an amount for sick leave for stress. In relation to his claim for stress he seeks an order that the first respondent pay him the same amount (calculated as a redundancy entitlement) for stress leave on the basis that this matter, as stated by him, has “taken a toll”. Mr Allen states that he saw a counsellor in August 2012 for stress. He conceded in giving his evidence that there were other reasons for seeing a counsellor in that he was “hot tempered” stating he “got into trouble” referring briefly to a neighbourhood dispute. Mr Allen has not filed any documents to support his claim for stress. [56] Ms Whitney gave evidence that had Mr Allen not resigned and left Newlands, he would not have been eligible for a redundancy based on the assessment ranking for employees identified for a redundancy: skill set, safety and personal effort. She sated in giving her oral evidence that approximately 5 months after Mr Allen left Newlands some employees were assessed and subject to their assessment ranking were then effectively targeted for redundancy. She sates that Mr Allen is a trainer and assessor, he was never disciplined during his employment with Newlands and there were no performance management issues. Mr Allen would therefore have scored higher than other employees and he would not have been eligible for a redundancy. [57] Notwithstanding Ms Whitney’s evidence that Mr Allen would not have been eligible for a redundancy, she calculated Mr Allen’s redundancy entitlement based on the assumption that he was eligible in the amount of $22,651.77. Mr Allen has adopted this figure for the purposes of assessing his claim and the orders sought by him. [58] The Tribunal has the power under s 209 of the Act in circumstances where the complaint is proven to order the respondents (such as Newlands) to pay to the complainant (Mr Allen) an amount the Tribunal consider appropriate as compensation for loss or damage caused by the contravention. The Tribunal has determined that it is not satisfied the allegations have been proven and that there has otherwise been a contravention of the Act. There is no basis upon which the Tribunal can order that Newlands pay the amount claimed by Mr Allen. Conclusion [59] I am satisfied that digger training is a desirable skill to have in the mining industry and that there were, during Mr Allen’s employment with Newlands, many employees who wanted to be trained on an excavator. [60] I am not satisfied there has been a contravention of the Act and in particular that the words alleged to have been said by Mr See in relation to him wanting “young go getters” were said and that Mr Allen was otherwise refused training because of his age. Mr See admits saying to his -- 12 of 13 -- 13 supervisors that he wanted younger people to be given an opportunity as part of a succession plan for Newlands and other operators. [61] I have made findings based on the evidence before me that the decision to train Mr Matheson and Mr Ussher was a decision made by Mr Hamilton and not Mr See. Although Mr See was consulted by Mr Hamilton in relation to the training Mr See was, based on his own evidence, effectively misled by Mr Hamilton about the suitability of the employees (Mr Matheson and Mr Usher) in particular their prior experience. [62] There is also evidence before me that Mr Allen had expressed a desire to work in South Africa. It is reasonable to infer that this may also have been a contributing factor as to the reason why Mr Hamilton made the decision to train Mr Matheson and Mr Ussher and not Mr Allen. That is, Mr Allen may in the near future have left Newlands. There is also evidence before me that Mr Hamilton was friendly with Mr Matheson and Mr Ussher and again it is reasonable to infer that this may have been a reason why Mr Hamilton preferred Mr Matheson and Mr Ussher. [63] I am satisfied that Newlands have, during Mr Allen’s employment, given opportunities to other employees aged over 50 to train on an excavator and that Mr Hamilton and Mr See had completed EEO training when they commenced their employment. There is also evidence before me of the selection process used to determine whether an operator is suitable for training and I am satisfied the criteria does not include a consideration of the age of the employee. [64] In relation to the allegations of victimisation, Mr Allen was not denied an opportunity to take leave applied for and any changes to his leave requests including providing further information prior to approval were required by Newlands as part of an internal working policy for taking leave. [65] I am not satisfied that Mr Allen was treated any differently by Newlands in relation to his working roster as a result of making a complaint. It is reasonable to infer having considered the evidence of Mr Allen, Mr See and Ms Whitney that Mr Allen has effectively formed a view about the circumstances of his working environment giving rise to the allegations and this has clouded his judgment about decisions allegedly made by Mr See in relation to the approval of leave; and to place Mr Allen on certain equipment in different pits for work. [66] I find it more probable that Mr Allen’s skills were needed elsewhere in that there was a reason for Newlands to require him to wok on particular equipment and in a particular mine and this was a decision based on the operational needs of Newlands and not otherwise based on Mr Allen’s age or the fact that he had made a complaint. [67] Based on the findings made, the Tribunal cannot be satisfied that the allegations as they relate to discrimination and victimisation have been substantiated and that there has been a contravention of the Act. The appropriate order is that Mr Allen’s application is dismissed. -- 13 of 13 --