11 May 2011

Discrimination case highlights issues in managing performance and mature workers

by Glen Bartlett

Unless a worker is unable to perform the inherent or genuine occupational requirements of their position, it is unlawful to discriminate against them on account of their age.

The New South Wales Administrative Decisions Tribunal (ADT) recently awarded Robert Talbottt $25,323 in compensation after finding that Mount 'N' Beach Safaris Pty Ltd (MNB Safaris) (now Sperling Tourism & Investments Pty Ltd) contravened its obligations under the Anti-Discrimination Act (NSW) 1977 by discriminating against Mr Talbott on the basis of his age (Talbott v Sperling Tourism & Investments Pty Ltd (formerly Mount 'N' Beach Safaris Pty Ltd) [2011] NSW ADT 67).

What were the facts?

Mr Talbott was engaged by MNB Safaris as a bus driver and tour guide in metropolitan Sydney and the Blue Mountains from March 2005 to January 2008. As at January 2008, Mr Talbott was aged in his early 70s.

In July 2007 MNB Safaris sent a facsimile to Mr Talbott, which informed him that he would not be offered a position as a driver/guide for the company in 2007/2008. The facsimile expressed concern as to Mr Talbott's ability to negotiate heavy traffic, weather conditions, adhering to a schedule and climbing in and out of buses. While the facsimile did not directly attribute Mr Talbott's age to these concerns, it stated that '[i]n good faith and recognising you are now aged in your early 70s, what I suggest is that it's time to step back from front line tour driver/guide work'.

Ultimately, MNB Safaris did offer Mr Talbott alternative work, which involved shorter tours and smaller buses. However, after a minor accident in January 2008, in which Mr Talbott was at fault, MNB Safaris informed Mr Talbott that no additional work would be offered to him. Following this, Mr Talbott made a complaint to the ADT, alleging that he had been discriminated against on the basis of his age.

What did the ADT consider?

The ADT identified two issues for consideration:

  • Was there a contractual relationship between MNB Safaris and Mr Talbott?
  • Did MNB Safaris discriminate against Mr Talbott on the ground of his age?

Was there a contractual relationship?

Under section 49ZYB of the Act, it is unlawful for an employer to discriminate against an employee on the ground of age.

MNB Safaris argued that there was no employment relationship between it and Mr Talbott, but that it had instead entered a contractual relationship with Mr Talbott's family company. In support of this, amongst other factors, MNB Safaris submitted that it did not have the exclusive services of Mr Talbott, that Mr Talbott had no obligation to work and that he was not provided with holidays. Further, Mr Talbott's company was paid without any deduction for income tax and provided invoices for the work performed by Mr Talbott.

This argument was rejected by Mr Talbott, who claimed that he was an employee of MNB Safaris. For example, he was required to wear both a summer and a winter uniform, adhere to personal presentation standards as set by MNB Safaris, was subject to a pre-determined schedule and set performance standards, and correspondence from MNB Safaris was addressed to Mr Talbott himself.

Mr Talbott also argued that there were policy grounds to avoid narrow constructions to definitions under the Act that operate to defeat the Act's purposes. The ADT agreed, and held that the MNB Safaris intended to enter into a legal relationship with Mr Talbott personally and not with Mr Talbott's company. The ADT also noted that due to the broad definition of "employment" under the Act, Mr Talbott would still be protected by section 49ZYB(2) of the Act even if he were an independent contractor rather than an employee.

Was Mr Talbott Discriminated Against on the Basis of Age?

Under the Act, Mr Talbott was required to establish the following in order to be successful in his complaint:

  • that the MNB Safaris committed an act or omission in relation to Mr Talbott;
  • the act committed amounted to less favourable treatment than the MNB Safaris would have treated a person who was not of Mr Talbott's age; and
  • there is a causal nexus between the less favourable treatment and Mr Talbott's age.

MNB Safaris denied that it had discriminated against Mr Talbott, and argued that he was no longer offered work due to poor performance. MNB Safaris led evidence that there had been complaints from customers about not being able to hear Mr Talbott's commentary clearly, that he spoke inappropriately about personal matters, that he did not provide water to passengers, that the air-conditioning did not work properly on the bus, that he was speeding on two or three occasions and that as at July 2007 he had one at-fault accident. Further, Mr Talbott was involved in an additional at fault accident in January 2008.

The ADT determined that the hypothetical comparator for assessing whether Mr Talbott was discriminated against was not another employee aged 75 years but an employee who had been involved in two minor at-fault accidents, three speeding breaches and minor customer complaints.

Mr Talbott said there had been no prior counselling, no additional training and no warnings in respect of any alleged speeding incidents. MNB Safaris could not produce any documentary evidence of letters of warning or counselling. The ADT also thought it 'illogical' that Mr Talbott would be offered shorter city tours after his first at-fault accident in July 2007 if this accident was serious enough to warrant dismissal.

The ADT found that although it is probable that the accident and its costs to MNB Safaris were an issue, on the balance of probabilities Mr Talbott's age was one of the reasons for the dismissal, and the inference could be drawn that MNB Safaris considered Mr Talbott was finding it physically hard to do the work on account of his age.

The ADT found on the balance of probabilities that Mr Talbott was treated less favourably than other drivers who had arguably committed more serious breaches, in that Mr Talbott was restricted to driving half-day city tours, when other drivers were allowed to conduct full-day tours, and that the reason was his age.

What was the compensation?

The ADT awarded Mr Talbott a total compensation amount of $25,233: $5,323 for loss of income and $20,000 for general damages arising from hurt, humiliation and injury to feelings. On the general damages award, the ADT was satisfied that Mr Talbott had been treated in a demeaning and paternalistic way on the basis of his age. MNB Safaris was also required to provide a written apology to Mr Talbott.

Key lessons

Mandatory retirement (with some exceptions) has been abolished in Australia.

Therefore, unless a worker is unable to perform the inherent or genuine occupational requirements of their position it is unlawful to discriminate against a worker on account of their age, including by terminating their employment.

Importantly, as cases like these highlight, it is important for employers to:

  • not make assumptions about what a worker is able to do or not do;
  • if there are genuine performance issues, theses should like for any other worker, be managed and addressed fairly and with transparency.

Thanks to Jack O'Brien for his help in writing this article

 

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