Robert Talbot ('the claimant') was 75 years of age and worked as a tour guide operator and bus driver for the respondent, conducting tours in the metropolitan region of Sydney and the Blue Mountains. The claimant was also the director of a company trading as Talbot Management Services Pty Limited ('TMS').

The claimant alleged that his treatment during the period of 18 July 2007 until his dismissal on 22 January 2008 amounted to discrimination on the grounds of his age, pursuant to the Anti Discrimination Act 1977 (NSW).

The Tribunal had to consider two primary issues:

Firstly, was there a contractual relationship between the claimant and the respondent, and if so, was the claimant an employee or an independent contractor?

Secondly, did the respondent discriminate against the claimant on the grounds of his age?

Was there a contractual relationship?

Section 49ZYB(2) of the Anti Discrimination Act 1977('the Act') provides that it is unlawful for an employer to discriminate against an employee on the grounds of age:

In the terms or conditions of employment
By denying or limiting opportunities for promotion /training
By way of dismissal or other detriment

Section 4 of the Act defines 'employment' as including work performed under contract for services. To prove discrimination pursuant to Section 49ZYB(2), the claimant needed to first establish that an employment relationship or contract for services existed between himself and the respondent.

The respondent submitted that the relevant provisions of the Act did not apply to its conduct, because the respondent's intention was not to enter into a personal legal relationship with the claimant, but rather a relationship with the claimant's company, TMS.

The claimant argued that employment definitions in the Act should not be given a narrow construction which would likely defeat the purpose of the Act.

Having regard to the decision of the High Court in Stevens v Brodribb Sawmilling Co Pty Limited (1986) 160 CLR 16, the Tribunal was satisfied that a relationship of employment existed between the respondent and the claimant himself, rather than his trading company, for the purposes of the Act. This was largely demonstrated by the conduct of the respondent, which included the provision of a uniform and pre-determined work schedules.

Did the respondent discriminate against the claimant on the grounds of his age?

The Tribunal noted that for discrimination to be established, age was required to be one of the reasons why the claimant was dismissed, although it need not be the dominant or substantial reason. In considering whether the conduct complained of amounted to differential treatment on account of age, the Tribunal noted the relevant test was that of an 'actual comparator' or a 'hypothetical comparator'.

An actual comparator is someone who was a bus driver for the respondent, and had the same infractions as the claimant (three speeding infractions, two at-fault accidents, and a variety of minor customer complaints). The respondent presented no evidence to the Tribunal with examples of treatment afforded to other drivers who had committed the same infractions, such that they would be considered actual comparators.

In the absence of an actual comparator, the Tribunal had to consider a hypothetical comparator.

The question as to causation then became – why was the claimant treated as he was?

In coming to their decision, the Tribunal had regard to two facsimiles sent by the respondent to the claimant.

The first facsimile of 18 July 2007 had a major bearing on the outcome of the case. The respondent advised the claimant that he would not be offered a return position as a full-tour bus driver, noting that the claimant was aged in his 'early 70s' and suggested that the claimant should step back from frontline driving work.

Prior to the facsimile, the claimant was involved in a minor accident, in addition to some minor complaints about his tours, including a failure to provide water to passengers and speeding on two or three occasions.

Conflicting oral evidence was provided by the claimant and the respondent as to whether the claimant was warned or counselled in respect of these minor infractions or the accident. The respondent maintained that the claimant was counselled on numerous occasions, although no written evidence was tendered in this regard.

The respondent put forward three employees, argued to be 'comparable employees', to defeat the claimant's argument for differential treatment due to his age. Each employee was provided with a written warning about their conduct. However, the Tribunal deemed that the three examples were clearly more serious breaches than those committed by the claimant. Based upon the disciplinary action taken by the respondent against those employees, the Tribunal found that the claimant was treated more harshly than the other drivers who had committed more serious breaches.

A second facsimile was sent to the claimant on 22 January 2008 after he was involved in a second minor accident. The claimant was summarily dismissed.

The respondent submitted that they had lost confidence in the claimant's ability to drive any bus safely, although once again, there was no evidence tendered in respect of any warning or counselling provided to the claimant.

Finding

The Tribunal found that one of the reasons for the claimant's dismissal was due to his age. In the absence of any direct evidence in this regard, the Tribunal drew this inference from the respondent's treatment of the claimant. Notably, the claimant was not provided with any written warning or counselling. He was also never offered the chance to explain the infractions against him. The Tribunal noted that the respondent had taken these steps with other employees who had committed more serious infractions.

The Tribunal was satisfied that a hypothetical comparator who was not 75 years of age, but who had been involved in the same incidents, would not have been treated the same way.

The Tribunal awarded the claimant $25,323 and the respondent was ordered to prepare a written apology, and undertake a course outlining equal opportunity obligations.

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