Bair v Goldpath Pty Ltd & Callinan [2010] QCAT 483

CITATION: Bair v Goldpath Pty Ltd & Callinan [2010] QCAT 483 PARTIES: Mr Barry Bair v Goldpath Pty Ltd & Mrs Rebecca Callinan APPLICATION NUMBER: ADL016-10 MATTER TYPE: Anti-Discrimination matters HEARING DATE: 26 August 2010 HEARD AT: Coolangatta Courthouse DECISION OF: Dr Bridget Cullen Mandikos DELIVERED ON: 27 September 2010 DELIVERED AT: Brisbane ORDERS MADE: The Respondents to file in QCAT, and serve upon the Applicant, a written apology within 28 days of this order. CATCHWORDS : Anti-discrimination – Age discrimination – Pre-work area – Unlawful requests for information LEGISLATION CITED: Anti-Discrimination Act 1991 (Qld), sections 7, 8, 9,10, 14, 124 and 209(5) CASES CITED: Gardener v Norcott & CDV Pty Ltd [2004] QADT 39, applied Haines v Bendall (1991) 172 CLR 60 at 63, considered APPEARANCES and REPRESENTATION (if any): APPLICANT : Mr Barry Bair RESPONDENTS: Mr Bob Wells & Mrs Rebecca Callinan -- 1 of 9 -- 1 REASONS FOR DECISION Facts [1] The Applicant, Mr Barry Bair (“Mr Bair”), lodged a complaint with the Anti- Discrimination Commission Queensland (“ADCQ”), under the Anti- Discrimination Act 1991 (“the Act”), against the First Respondent, Goldpath Pty Ltd and Second Respondent, Mrs Rebecca Callinan (“Mrs Callinan”), on 6 October 2009. The complaint was accepted by the ADCQ on 15 October 2009. [2] Mr Bair’s complaint arises from an employment interview that he participated in on 23 September 2009, seeking a position as a warehouse/storeperson at Mr Charles, a small, family owned school uniform manufacturer located in Nerang, QLD. Mr Charles is a division of the First Respondent, Goldpath Pty Limited. Mrs Callinan is an employee of Mr Charles. [3] Mr Bair complained that the Respondents unlawfully requested information from him during his interview, in contravention of s124 of the Anti-Discrimination Act 1991 (Qld) (“the Act”). Mr Bair also complained that he was treated less favourably during the recruitment process, on the basis of his age and parental status. On 26 February 2010, the ADCQ referred this matter to QCAT. [4] At the hearing of this matter, I was assisted by the evidence of Mr Bair, Mr Bob Wells (“Mr Wells”, Director of the First Respondent), and Mrs Callinan. [5] The Respondents admit to having asked Mr Bair about his age, parental status, and general health (i.e. number of sick days taken by Mr Bair in his previous employment). However, the Respondents claim that the information they obtained did not inform their decision about which candidate to ultimately offer the position to. Instead, the Respondents claim these questions were asked for the following reasons: Do you have children? “This question was asked as part of an informal discussion and general chit chat. People normally like to talk about their children; it is a way to encourage people to relax during an interview.” 1 Date of Birth “This question was asked for administration and paper file reasons so if Mr Barry Bair was successful in the position these details were known.” 2 1 Respondent’s Statement of Evidence, filed in QCAT on 29 June 2010. -- 2 of 9 -- 2 General Health i.e. sick days “This question was asked as this is a physical job and we wanted to make the applicant fully aware of the manual labour involved.” 3 [6] Mr Bair declined, as was his right, to answer the question relating to his date of birth. [7] The Respondents deny having asked Mr Bair how he supported himself during his period of unemployment prior to making application at Mr Charles. I find that I do not need to resolve the issue as to whether this particular question was asked, for the reason that financial status is not an attribute to which the Act applies. Request for unnecessary information [8] Mr Bair’s primary case is that, by virtue of asking him questions relating to his age, parental status, and number of sick days taken in his prior employment, the Respondents contravened the Act. I have not determined whether asking questions about the number of sick days taken does, or does not, fall within the protected attribute of “impairment”. [9] Section 124 of the Act provides as follows: Unnecessary information (1) A person must not ask another person, either orally or in writing, to supply information on which unlawful discrimination might be based. (2) Subsection (1) does not apply to a request that is necessary to comply with, or is specifically authorised by— (a) an existing provision of another Act; or (b) an order of a court; or (c) an existing provision of an order or award of a court or tribunal having power to fix minimum wages and other terms of employment; or (d) an existing provision of an industrial agreement; or (e) an order of the tribunal. (3) It is a defence to a proceeding for a contravention of subsection (1) if the respondent proves, on the balance of probabilities, that the information was reasonably required for a purpose that did not involve discrimination. 2 Respondent’s Statement of Evidence, filed in QCAT on 29 June 2010. 3 Respondent’s Statement of Evidence, filed in QCAT on 29 June 2010. -- 3 of 9 -- 3 (4) In this section-- existing provision means a provision in existence at the commencement of this section. [10] I agree with Mr Bair that the Respondents’ questions relating to his age and parental status contravened s124 of the Act. The Respondents have openly admitted that the questions were asked. There was no justifiable basis upon which these questions could reasonably be required for a purpose that did not involve discrimination. [11] The Respondents have explained, and I accept their explanation, that the questions were asked due to a lack of awareness about the Act in this regard. Mrs Callinan, who was the main interviewer for the Respondent, had not (at that stage) undertaken any formal or informal human resources training. She gave evidence at the hearing that she was working from a list of suggested interview questions that the Respondent had obtained from industry sources. The reason that she wanted a list of suggested questions is that she was nervous about her own inexperience in conducting the interview and did not want to be taken off-track. Discrimination on the basis of an attribute [12] In addition to arguing that the Respondents contravened s124 of the Act, Mr Bair also argues that he has been discriminated against on the basis of an “attribute”. Section 7 of the Act prohibits discrimination on the basis of, amongst other attributes, parental status, age and impairment. Mr Bair’s primary argument, as argued orally and as outlined in his written materials4 , relates to discrimination on the basis of age. [13] Section 8 of the Act provides: Meaning of discrimination on the basis of an attribute Discrimination on the basis of an attribute includes direct and indirect discrimination on the basis of— (a) a characteristic that a person with any of the attributes generally has; or (b) a characteristic that is often imputed to a person with any of the attributes; or (c) an attribute that a person is presumed to have, or to have had at any time, by the person discriminating; or 4 Applicant’s Statement of Evidence, filed in QCAT on 12 July 2010. -- 4 of 9 -- 4 (d) an attribute that a person had, even if the person did not have it at the time of the discrimination. [14] Section 9 of the Act prohibits both direct and indirect discrimination. In these circumstances, the conduct that Mr Bair complains of would fall within the classification of direct discrimination. Section 10 of the Act defines “direct discrimination” by providing, relevantly:- Meaning of direct discrimination (1) Direct discrimination on the basis of an attribute 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. (2) It is not necessary that the person who discriminates considers the treatment is less favourable. (3) The person's motive for discriminating is irrelevant. [15] It is clear that Mr Bair’s application for employment at Mr Charles is an area that is covered by Act, within which unlawful discrimination is prohibited, by virtue of s14: Discrimination in the pre-work area A person must not discriminate— (a) in the arrangements made for deciding who should be offered work; or (b) in deciding who should be offered work; or (c) in the terms of work that is offered, including, for example, a term about when the work will end because of a person's age; or (d) in failing to offer work; or (e) by denying a person seeking work access to a guidance program, an apprenticeship training program or other occupational training or retraining program; or (f) in developing the scope or range of such a program. Mr Bair was not, on the evidence, treated less favourably [16] The evidence before the Tribunal does not establish, however, that Mr Bair was in fact treated less favourably than a younger person would have been treated in the recruitment process. The Respondents’ evidence -- 5 of 9 -- 5 indicated that Goldpath Pty Ltd had 9 employees aged between 25 and 68, of which 6 were over the age of 50, at the relevant time. [17] The Respondents’ evidence was that Mr Bair was not offered the position for the reason that he did not have the same level of relevant experience, as outlined below: • The successful applicant had significant experience in the clothing manufacture industry; Mr Bair had no experience in the clothing manufacture industry; • The successful applicant had more experience in the same role as the offered position (storeman and driver); Mr Bair had less experience in these operational roles, but did have experience in warehouse managing positions; • The successful applicant had a forklift licence and was MAF Container Checking qualified; Mr Bair was not. [18] Mr Bair points out that the advertisement for the position did not specifically mention that is would be advantageous for the successful applicant to have a forklift license. 5 While this is the case strictly, the position did seek an employee to unload pallets, and have a manual driver’s license. In the circumstances, I do not find that Mr Bair was treated less favourably on the basis of his age. Rather, the position was legitimately offered to a candidate with skills more relevant to the position advertised. Relief [19] Mr Bair seeks three orders from QCAT: 1. That Mr Wells and Mrs Callinan undertake training by an accredited human resource training professional; 2. That the Respondent implement a new human resources policy to ensure that all future employees conducting interviews have been trained; 3. Compensation in the amount of $5,000.00 for lost wages and damages. Implementation of training and new human resources policy 5 Exhibit B to Applicant’s Statement of Evidence, filed in QCAT on 12 July 2010. -- 6 of 9 -- 6 [20] The Respondent is a smaller, family owned business with limited financial resources. The recruitment process that led to this unfortunate situation was Mrs Callinan’s first experience with interviewing. Mrs Callinan, at the time of Mr Bair’s interview, had no formal/informal human resources training, and relied on outdated interview questions that the Respondent kept on file to guide the process. Mr Wells gave evidence that the Respondent made an attempt to seek updated and appropriate interview questions from the Chamber of Commerce and Industry Queensland for Mrs Callinan’s benefit and guidance prior to conducting this round of interviews. However, they were unable to obtain assistance in this regard, and as a consequence chose to rely upon the outdated interview questions already on file. [21] This scenario strikes me as a common problem faced by small businesses that lack financial and personnel-time resources to update internal policies and procedures in order to ensure legal and statutory compliance. Consequently, as is the case with the First Respondent here, some small businesses unnecessarily put themselves at risk of contravening current legislation and current industry standards. [22] The Respondents acknowledge and understand that the outdated interview questions concerning age and parental status, put to Mr Bair in his interview, contravene the Act. At the hearing of this matter, both Mr Wells and Mrs Callinan expressed genuine remorse for their actions, and indicated that they have already taken the initiative to complete training related to recruitment and selection processes. The Respondent has, of its own accord, instigated a new human resources policy, following Mr Bair’s complaint.6 [23] Having accepted the evidence of Mr Wells and Mrs Callinan with regard to training, and the Respondent’s heightened awareness of its obligations under the Act particularly, there is no utility in my making a further Order compelling the Respondents to take further steps in these respects. Compensation [24] Mr Bair gave evidence that following the interview, he began to question whether he had reached an age considered to be “unemployable”. He claims the interview process made him feel “totally humiliated”. After this unfortunate experience, Mr Bair continued to seek employment elsewhere and successfully secured a job with another company, within two months of this incident. 6 Exhibit E to Respondent’s Statement of Evidence, filed in QCAT on 29 June 2010. -- 7 of 9 -- 7 [25] Having found the Respondents contravened section 124 of the Act in asking Mr Bair questions about his age and parental status, QCAT has the discretion to make one or more of the orders that are set out in section 209(1) of the Act. One such order includes the respondent paying the applicant an amount that QCAT considers appropriate as compensation for loss, or damage, caused by the contravention. [26] Mr Bair has cited the case of Gardener v Norcott & CDV Pty Ltd [2004] QADT 39 (“Gardener”), where both Respondents were ordered to pay Mr Gardener $2,500.00 each (a total of $5,000.00) in compensation for damages suffered as a result of age discrimination in the pre-work area. [27] While there are some similarities between the circumstances presented in Gardener and the instant case, there are some notable differences which, I find, impact on Mr Bair’s ability to be awarded compensation for lost income and damages. Lost income [28] The Member in Gardener found that Mr Gardener was treated less favourably during the recruitment process, in contravention of section 10 of the Act. However, in relation to lost income, the Member did not find that but for the age discrimination against Mr Gardener, Mr Gardener would have been offered the job. The Member did not find that because Mr Gardener was unemployed for two months after the incident, that he should be compensated for two months of lost income: Haines v Bendall (1991) 172 CLR 60 at 63. [29] With respect to lost income, I agree with the Member’s decision in Gardener. In the instant case, there was no contravention by the Respondents of sections 10 or 14(b) of the Act, as I have discussed above. I do not find that but for the discrimination against Mr Bair on the grounds of age and/or parental status, that Mr Bair would have been offered the job. Consequently, I do not find that Mr Bair should be compensated for two months of lost income. Damages [30] With respect to damages, the Member in Gardener took into account Mr Gardener’s evidence of the hurt and humiliation he experienced, and the disappointment he felt when he did not get the job. The Member also noted that the first respondent vehemently denied that age discrimination took place, and that she felt no remorse for her conduct. -- 8 of 9 -- 8 [31] In the instant case, I find that Mr Bair has not been able to adequately substantiate the damages he is seeking. While I do acknowledge that Mr Bair experienced hurt as a consequence of the recruitment process, I do not find that the evidence he presented amounted to offence; embarrassment; humiliation; or intimidation as under section 209(5) of the Act. Furthermore, the Respondents acknowledge their wrongful conduct; expressing remorse that struck me as genuine; and have been cooperative during these proceedings. Consequently, I do not find that Mr Bair should be awarded damages. [32] In Gardener, the Member was reluctant to order the respondents to make a private apology to Mr Gardener, as the Member believed a sincere apology would not be made. [33] In the instant case, I believe the Respondents are open to, and are capable of making a sincere apology to Mr Bair for the hurt their actions have caused him. I therefore order that the Respondents make a written apology to Mr Bair within 28 days of this order, under section 209(1)(d) of the Act. [34] Despite my finding that Mr Bair is not entitled to monetary damages in the particular circumstances presented here, I acknowledge and commend Mr Bair for utilising ADCQ and QCAT, as a self-represented litigant, when he believed he was discriminated against. Mr Bair diligently and proactively researched his case to present to QCAT. I trust his efforts will motivate potential, genuine litigants to file a complaint and see proceedings through to a final decision. Anti-discrimination law, in contrast to other areas of civil litigation, sees a relatively small number of annual complaints. In order to file a complaint and see proceedings through to a final decision, an applicant generally exhibits such characteristics as courage; patience; pro-activity and diligence. [35] This case highlights the unnecessary and avoidable risks small businesses take when they do not take the time and make the effort to update internal policies and procedures in order to ensure legal and statutory compliance. I trust that Mr Bair’s efforts in this case will serve as a reminder to small businesses to keep abreast of legislative and statutory changes in the future. Order [36] The Respondents to file in QCAT, and serve upon the Applicant, a written apology within 28 days of this order. -- 9 of 9 --