16 February 2022
22 min read
#Government, #Workplace Relations & Safety
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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.
Authors: Stephen Trew & Megan Cant
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Leach v Burston [2022] FCA 87
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Batson v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2021] FCA 1660
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Male v Kempsey Shire Council [2022] NSWCATAD 39
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Cincotta v Council of the City of Ryde [2022] NSWCATAP 24
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Commonwealth
Act Compilation
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
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Treasury Laws Amendment (Enhancing Tax Integrity and Supporting Business Investment) Bill 2022 10/02/2022
Fair Work Amendment (Equal Pay for Equal Work) Bill 2022 11/02/2022
Sex Discrimination and Other Legislation Amendment (Save Women’s Sport) Bill 2022 11/02/2022
Social Media (Anti-Trolling) Bill 2022 11/02/2022
Social Services Legislation Amendment (Workforce Incentive) Bill 2022 11/02/2022
Treasury Laws Amendment (Tax Concession for Australian Medical Innovations) Bill 2022 11/02/2022
Agriculture Biodiversity Stewardship Market Bill 2022 11/02/2022
Electoral Legislation Amendment (Authorisations) Bill 2022 11/02/2022
Electoral Legislation Amendment (COVID Enfranchisement) Bill 2022 11/02/2022
Electoral Legislation Amendment (Foreign Influences and Offences) Bill 2022 11/02/2022
Electoral Legislation Amendment (Voter Identification) Bill 2022 11/02/2022
Income Tax Amendment (Labour Mobility Program) Bill 2022 11/02/2022
Parliamentary Workplace Reform (Set the Standard Measures No. 1) Bill 2022 11/02/2022
Regulator Performance Omnibus Bill 2022 11/02/2022
Treasury Laws Amendment (Cyclone and Flood Damage Reinsurance Pool) Bill 2022 11/02/2022
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Regulations and other instruments
Water Management (General) Regulation 2018 14/02/2022
Final Determination under the Biodiversity Conservation Act 2016 11/02/2022
Final Determination under the Biodiversity Conservation Act 2016 11/02/2022
Legal Profession Uniform Law Australian Solicitors’ Conduct Amendment Rules 2022 11/02/2022
Local Government (General) Amendment (By-Elections during COVID-19 Pandemic) Regulation 2022 04/02/2022
Liquor Amendment (COVID Support) Regulation 2022 03/02/2022
Public Holidays Amendment (City of Shoalhaven) Order 2022 03/02/2022
Disclaimer
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.
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