Discrimination in recruitment, and more specifically, how to avoid it, was once an in vogue topic. However, with employers becoming more familiar with the requirements for fair recruitment in recent years, an inattention to discriminatory practices is at risk of re-emerging.
The NSW Civil and Administrative Tribunal (Tribunal) recently reminded employers that they cannot be inattentive to such matters when it admonished an employer for unlawful direct age discrimination, awarding compensation to a potential job applicant for both its remarks during an initial inquiry from the applicant, and for its subsequent conduct in sending an aggressive letter through its lawyers.
The facts underlying the case are simple and serve as a timely reminder for employers, including those in government, to train employees involved, both directly and indirectly, in recruitment to treat each potential job applicant in a fair, careful and consistent manner. This case is also a reminder of the need to treat complainants with a level of respect and professionalism to avoid further damage.
The case involved the applicant, Mr Galstaun, a 61 year-old with labouring experience in the construction industry, and the respondent, Adept Underpinner Pty Ltd (Adept), a residential and commercial construction service provider.
Adept placed a job advertisement on Indeed, a recruitment website, for a casual construction worker (Role). The duties of the Role included jack hammering, wheeling barrows of concrete and dirt, excavating and general construction labouring duties.
Mr Galstaun called Adept to inquire about the Role and spoke with Mr McDougall, the sole director of Adept. Mr McDougall asked Mr Galstaun his age and Mr Galstaun answered by saying he was 61. Mr McDougall laughed and said he had young workers “run away” from the workload. Before he ended the call, Mr McDougall told Mr Galstaun he would have a “heart attack” and was “too old”. Because of Mr McDougall’s comments, Mr Galstaun did not apply for the Role, engaged in less construction work over the subsequent few months and lost confidence to apply for other jobs requiring physical strength.
Mr Galstaun initially complained to the Anti-Discrimination Board about the incident. During that process, Adept’s solicitors wrote a letter to Mr Galstaun (Letter) in response to the complaint. The Letter included unnecessary derogatory language about Mr Galstaun, a suggestion that the complaint was “innuendo”, a comment that Mr Galstaun lacked experience and that he only held “part time bits and pieces labouring roles”.
To consider whether this case constituted direct discrimination, the Tribunal needed to establish:
On the first issue, the Tribunal found Mr McDougall’s comments on the call amounted to unlawful age discrimination in contravention of section 49ZYV(1)(b) of the Anti-Discrimination Act 1977 (NSW). This section prohibits an employer from discriminating against a person on the ground of age in determining who should be offered employment.
On the second issue, the Tribunal found it was more probable than not that Mr Galstaun did not actively seek construction work for some time after the conversation, and that Adept’s unlawful conduct materially contributed to this. As a result, Mr Galstaun was awarded economic loss in an amount that was just and equitable, which the Tribunal calculated to be $1,490.40. The Tribunal noted this amount was difficult to quantify for a number of reasons, including because of the variable rates of pay and because work was available to Mr Galstaun if he chose to apply for it.
On the third issue, the Tribunal found in favour of Mr Galstaun and awarded him $1,500 for non-economic loss, noting the call was a very short conversation and the discriminatory conduct itself was not prolonged.
On the fourth issue, the Tribunal accepted that the Letter was offensive and caused Mr Galstaun hurt and distress. In light of Mr McDougall endorsing what was said in the Letter, the Tribunal awarded Mr Galstaun $750 in exemplary damages, payable by Adept.
This judgment serves as a reminder to employers, including those in government, to refresh their recruitment processes and training on conducting interviews to avoid the perception that a protected attribute featured in any communication. Those involved with recruitment, including external recruiters and line managers, should be appropriately trained on the various anti-discrimination laws and the types of conduct that may amount to discrimination, whether intended or not.
This judgment also serves as a reminder that an employer or prospective employer’s response to a complaint can lead to a separate and further ground of compensation. The full decision can be read here.
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Renton v Minister for Home Affairs  FCAFC 11
MIGRATION – mandatory cancellation of a visa under s 501(3A) of the Migration Act 1958 (Cth) – decision not to revoke cancellation under s 501CA(4) – where the Minister made a finding that the appellant has psychological sexual issues relating to children – whether expert evidence was required – whether leave should be granted to raise new grounds – where new grounds are either without merit or do not allege jurisdictional error – appeal dismissed.
Gan v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs  FCA 91
MIGRATION – application for extension of time and leave to appeal from judicial review of a decision of the Administrative Appeals Tribunal – where Tribunal upheld decision of the Minister’s delegate to refuse the applicant’s citizenship application – where applicant did not meet the general residence requirements – where ss 22(1) and 22(1B) of the Australian Citizenship Act 2007 (Cth) require the applicant to be present in Australia as a permanent resident for the 12 months preceding the application but allow for an absence of not more than 90 days – where applicant was absent for 155 days – no arguable case in draft notice of appeal – application dismissed with costs.
Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs v EGZ17  FCAFC 12
MIGRATION – Immigration Assessment Authority (IAA) – where primary judge found that the “receiving country” at the time of the IAA’s decision, namely Afghanistan, had ceased to exist and that there was the “new existence of a county being the Islamic Emirate of Afghanistan” with the result that the IAA’s decision some four years earlier was “illogical and irrational and wanting in evident justification as to amount to legal unreasonableness” – whether primary judge erred in admitting evidence considered to be relevant to the existence or otherwise of Afghanistan – evidence was irrelevant and erroneously admitted – whether existence of receiving country a jurisdictional fact or condition precedent to exercise of the IAA’s power – whether the events in Afghanistan which occurred over four years after IAA decision were relevant to the application for judicial review – such events not relevant to the question of jurisdictional error on the part of the IAA – appeal allowed.
Ogawa v Finance Minister  FCA 1666
ADMINISTRATIVE LAW – application for judicial review of Minister’s delegate’s refusal to waive the applicant’s indebtedness to the Commonwealth – where applicant had previously made a similar application for waiver – where application to Minister was an application for reconsideration supported by a number of letters from Australian public expressing support for the applicant – whether Minister’s delegate erred in not making reference to the additional information constituted by those letters – where reasons of Minister’s delegate addressed the claim as made – whether the delegate erred in not considering claims made by the applicant in Federal Court proceedings concerning the previous application – where applicant did not submit this to the delegate – where delegate part of administrative continuum – where delegate entitled to proceed on basis that earlier decision was lawful – application dismissed.
Leach v Burston  FCA 87
PRACTICE AND PROCEDURE – interlocutory application for strike out and/or summary dismissal of applicant’s Points of Claim (POC) – whether it is reasonably arguable that s 46PO(3) of the Australian Human Rights Commission Act 1986 (Cth) (AHRC Act) does not preclude the applicant from pursuing proceedings in this Court – whether it is reasonably arguable that the Court has jurisdiction to determine whether respondent contravened s 94(1) of the Sex Discrimination Act 1984 (Cth) (SD Act) – whether applicant’s claims have a reasonable prospect of success – whether it is reasonably arguable that “acts, omissions or practices” (s 46PO(3)(b) of AHRC Act) are limited to events constituting alleged sexual harassment/discrimination – whether appropriate to determine s 46PO(3) of the AHRC Act and s 94(1) of the SD Act issues in interlocutory application – where Court satisfied it is reasonably arguable that Court has jurisdiction to hear complaint with regard to s 94 of the SD Act – where claims relating to s 28G(2) of the SD Act do not disclose arguable cause of action – s 28G(2) of the SD Act claims to be summarily dismissed/struck out, but balance of claims in POC are reasonably arguable – application otherwise dismissed.
Wills v Chief Executive Officer of the Australian Skills Quality Authority  FCAFC 10
ADMINISTRATIVE LAW – appeal on a question of law from a decision of the Administrative Appeals Tribunal (Tribunal) affirming a decision of the Australian Skills Quality Authority to reject the second respondent’s application to renew its registration as a Registered Training Organisation under the National Vocational Education and Training Regulator Act 2011 (Cth) – where Tribunal found that the second respondent failed to comply with Standard 7.1 of the Standards for Registered Training Organisations (RTOs) 2015 (2015 RTO Standards) by reason of its failure to ensure that the applicant satisfied criterion (i) of the Fit and Proper Person requirements in Sch 3 to the 2015 RTO Standards – where applicant alleged breach of procedural fairness – where the applicant was afforded an opportunity to respond but failed to take it by pressing a misconstruction of the first respondent’s case – where counsel for the applicant declined adjournment following clarification of the first respondent’s case – whether finding of dishonesty or fraud made without notice – discussion of principles by which it is determined whether there is a breach of procedural fairness – no denial of procedural fairness – appeal dismissed
PRACTICE AND PROCEDURE – where first respondent objected to the competency of the appeal – whether appeal constituted abuse of process – where applicant sought leave to rely on further amended notice of appeal – leave granted in the interests of justice.
HDWH v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs  FCA 1659
MIGRATION LAW – application for judicial review of Administrative Appeals Tribunal’s decision to affirm Minister’s non-revocation of mandatory visa cancellation – whether Tribunal failed to apply principle of paragraph 5.2 of Ministerial Direction 90 – where no error showed in Tribunal’s reasons – where applicant arrived in Australia as young child and committed offending 12 years later while still a minor – whether Tribunal misconstrued paragraph 9.4.1 of Ministerial Direction 90 by finding the applicant committed offending soon after arriving in Australia – where on no view can “soon after” mean a passage of 12 years – application granted.
Batson v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs  FCA 1660
MIGRATION – application for judicial review of Administrative Appeals Tribunal’s decision to affirm Minister’s non-revocation of mandatory visa cancellation – where applicant submitted to Tribunal that he maintained a relationship with an Australian women with a young child – where Minister conceded before the Tribunal that the applicant had a close family tie to his partner and her daughter – held: Tribunal failed to consider the effect on the applicant’s partner as a result of his removal from Australia – where applicant’s grandparents submitted a statement detailing the effect the applicant’s deportation would have on them – where Tribunal only quoted statement from applicant’s father that grandparents would be impacted – held: Tribunal failed to consider the evidence of the applicant’s grandparents – whether Tribunal failed to refer to applicant’s health conditions as impediment to removal – where Tribunal clearly had regard to symptomatology of applicant – application granted.
Fisher v Queanbeyan Palerang Regional Council  NSWCATAD 48
ADMINISTRATIVE LAW – administrative review – Government information – initial refusal to deal with an access application as it would require an unreasonable and substantial diversion of the agency’s resources - new decision disclosed information informally – matter remitted to respondent for reconsideration under s 65 of the Administrative Decisions Review Act 1977 (NSW) for reconsideration.
Walton v Eurobodalla Shire Council  NSWCATAD 46
ADMINISTRATIVE LAW – Government Information (Public Access) Act – GIPA – Decision to impose a processing charge – whether records required to be retrieved – whether decision period open to be extended by agency – whether information is personal information.
Woodhouse v Commissioner for Police  NSWCATAD 41
ADMINISTRATIVE LAW – Government Information – refusal to deal with application – whether substantial and unreasonable diversion of agency’s resources.
FDL v South Western Sydney Local Health District  NSWCATAD 40
ADMINISTRATIVE LAW – Privacy and Personal Information Protection Act 1998 – Health Records and Information Privacy Act 2002 – health privacy principles – administrative review of a reviewable decision – administrative review of an internal review of conduct of the agency.
Makowska v St George Community Housing Ltd  NSWCA 5
ADMINISTRATIVE LAW – judicial review – requirement to demonstrate jurisdictional error or error of law on the face of the record – no error demonstrated.
ADMINISTRATIVE LAW – remedies – discretionary factors – where statutory right of appeal not availed of – absence of satisfactory explanation – avoidance of need to obtain leave to appeal – whether relief should be refused on discretionary grounds.
Male v Kempsey Shire Council  NSWCATAD 39
ADMINISTRATIVE LAW – public access to government information – request for information – balancing public interest considerations – prejudice the supply of confidential information that facilitates the effective exercise of an agency’s functions – found an action against an agency for breach of confidence – reveal an individual’s personal information – reveal commercial-in-confidence provisions of a government contract – diminish the competitive commercial value of any information to any person – prejudice any person’s legitimate business, commercial, professional or financial interests – balancing public interest considerations – third party objections.
Cincotta v Council of the City of Ryde  NSWCATAP 24
ADMINISTRATIVE LAW – public access to government information – request for information concerning complaints against the appellant – whether disclosure likely to reveal the identity of an informant – meaning of “informant” –hether falsity of complaint a factor favouring disclosure.
Income Tax Assessment Act 1936
14 February 2022 – Act No. 27 of 1936 as amended
Education Services for Overseas Students Act 2000
10 February 2022 – Act No. 164 of 2000 as amended
National Consumer Credit Protection Act 2009
10 February 2022 – Act No. 134 of 2009 as amended
Criminal Code Act 1995
9 February 2022 – Act No. 12 of 1995 as amended
Customs Act 1901
8 February 2022 – Act No. 6 of 1901 as amended
Hazardous Waste (Regulation of Exports and Imports) Act 1989
8 February 2022 – Act No. 6 of 1990 as amended
Freedom of Information Act 1982
7 February 2022 – Act No. 3 of 1982 as amended
Income Tax Assessment Act 1997
7 February 2022 – Act No. 38 of 1997 as amended
Tax Agent Services Act 2009
7 February 2022 – Act No. 13 of 2009 as amended
Online Safety Act 2021
3 February 2022 – Act No. 76 of 2021 as amended
Australian Securities and Investments Commission Act 2001
3 February 2022 – Act No. 51 of 2001 as amended
Customs Tariff Act 1995
2 February 2022 – Act No. 147 of 1995 as amended
Social Media (Anti-Trolling) Bill 2022 11/02/2022
Regulator Performance Omnibus Bill 2022 11/02/2022
Regulations and other instruments
Water Management (General) Regulation 2018 14/02/2022
The information in this publication is of a general nature and is not intended to address the circumstances of any particular individual or entity. Although we endeavour to provide accurate and timely information, we do not guarantee that the information in this article is accurate at the date it is received or that it will continue to be accurate in the future.