On 12 November 2019, a potential job applicant telephoned the construction company to inquire about a casual construction job advertised online.

The applicant alleged the call was answered by the company director, who asked how old he was. When the applicant responded that he was 61 years old, the director laughed, stating he would “have a heart attack and didn’t want that happening on his site”. The director said the applicant was “too old” and ended the call. The applicant made a note of the conversation the following day.

On 20 November 2019, the applicant complained to the Anti-Discrimination Board.

In response to the complaint, the construction company engaged a lawyer who, on 17 February 2020, wrote to the applicant. The applicant considered the letter was belittling and degrading which contained derogatory language.

The Civil and Administrative Tribunal (“Tribunal”) in New South Wales heard the matter. In the hearing, the applicant claimed the telephone call with the director affected his confidence in his ability to undertake construction work and as a result, did not apply for the job and ceased accepting such work for about 6 months.

He also claimed the discrimination caused him to suffer economic loss and non-economic loss. In addition, the applicant argued he was entitled to aggravated and exemplary damages based on the contents of the lawyers’ letter which the director endorsed.

The company denied the applicant’s account of the conversation. Instead, the company (and director) maintained the director answered the applicant’s questions about what was involved in the position and advised the applicant to submit a resume. The director admitted being “very short” as the call was made at 7.30pm and he had been awake since 4.30am.

When questioned why the solicitors letter used more derogatory terms rather than what the director stipulated in the conversation, the director said he simply gave all the information but “the solicitor wrote the letter”.

The decision

In determining which version of the conversation was more probable, the Tribunal took into consideration the applicants contemporary note of the conversation, the timing of the complaint and the fact that the applicant did not apply for the role. The demeanour of the two witnesses was also taken into consideration. Noting the complainant spoke quietly, slowly and considered whilst, the director was more abrupt, exhibiting frustration and using “more colourful language”.

Ultimately the Tribunal favoured the applicant’s evidence and ordered the construction company to pay a total of $3,740.40 which comprised of $1490.40 in economic loss, $1500 in non-economic loss, and $750 for aggravated damages.

Learnings for business

This case highlights the importance of understanding your business’ responsibilities around equal opportunity which apply before, during and at the termination of the employment relationship.

Having a well-thought-out recruitment and selection process will ensure compliance with your legal obligations, to prevent discrimination in the recruitment process. Employees involved in the recruitment process should be educated about their obligations to allow a fair process for all applicants.

How we can assist your business

For assistance on any aspect of your employment obligations, please call the Victorian Chamber Workplace Relations Advice Line on (03) 8662 5222. Complete members can receive unlimited general advice on a range of workplace issues including Occupational Health and Safety, WorkCover, workplace policies, disciplinary procedures and more.

[2021] NSWCATAD 75