Dismissed employee victimised for age discrimination complaints

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Dismissed employee victimised for age discrimination complaints

The NSW Administrative Decisions Tribunal has awarded $5,000 to an employee dismissed two weeks before his contract concluded after finding his dismissal was an act of victimisation.

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The NSW Administrative Decisions Tribunal has awarded $5,000 to an employee dismissed two weeks before his contract concluded after finding his dismissal was an act of victimisation.
The tribunal concluded that 'had it not been for the numerous allegations of age discrimination and victimisation directed at the [department] and its employees, the decision to summarily dismiss [the employee] would not have been taken'. It also said that 'while poor performance may provide an innocent and plausible explanation as to why [the employee's] contract was not renewed, it does not in our view adequately answer why his contract was not allowed to run its full course'.
 
When the employee was told his services were no longer required he was instructed to leave the building and told he could return to his desk to collect his belongings only if he agreed to being accompanied by an escort. The tribunal argued that loss or damage 'is not measured exclusively in economic terms' and that the premature termination of the employee's contract caused him embarrassment in the face of his work colleagues. This comment suggests a weakening in the reluctance of courts and tribunals to award damages for 'non-economic damages' like embarrassment and impact on reputation.
 
Background
 
The employee, an award inquiry officer at the NSW Department of Industrial Relations' telephone call centre, alleged the department unlawfully discriminated against him on the grounds of age. He further alleged that the department subjected him to victimisation contrary to the provisions of s 50 of the Anti-Discrimination Act 1977.
The officer was then in his early forties. About twenty other employees, most in their twenties, had been recruited at the same time as him. He was initially engaged on a four-month contract, but this contract was renewed 14 times. On several occasions the officer complained he had been subjected to age discrimination. He alleged older staff were the first to have their hours cut during a period when funds were short and staffing was temporarily reduced. He also lodged grievances against his immediate managers claiming they had discriminated against him. On three occasions he unsuccessfully applied for a more senior grading within the call centre, which he put down to age discrimination.
 
After his final interview for a new role, the officer was called to a meeting and told his application had been unsuccessful and that his services were no longer required. He was instructed to leave the building. At the time the officer's contract had a further two weeks to run, but this was paid out. He was permitted to return to his desk to collect his belongings only if he agreed to being accompanied by an escort (which he did not).
 
Findings
 
The Administrative Decisions Tribunal found the manner in which the officer's contract was terminated constituted an act of victimisation. It said that the officer satisfied the test that his complaints of age discrimination 'had a real causative effect in the sense that but for [their] presence [the dismissal] would not have occurred'.
The department claimed his contract was concluded for unsatisfactory performance. It said its interview panel had determined he was unsuitable for the regraded award inquiry officer position. The tribunal, however, concluded that this claim did not 'adequately answer why his contract, which had been renewed on fourteen subsequent occasions, was terminated without notice'. It said the department's evidence showed the officer's performance problems were not new, but that it had been tolerated for over two and a half years because of staff shortages. It also found there was no evidence that the officer's work performance had deteriorated immediately prior to his dismissal, nor that the staff shortages had been cured.
 
The tribunal said the department could not provide any insight as to why the officer was not permitted to work to the end of his contract. It also said there was no evidence to suggest that summary dismissal was commonplace within the Public Sector, but rather the opposite.
 
The tribunal said that 'while poor performance may provide an innocent and plausible explanation as to why [the officer's] contract was not renewed, it does not in our view adequately answer why his contract was not allowed to run its full course'. It concluded that 'had it not been for the numerous allegations of age discrimination and victimisation directed at the [department] and its employees, the decision to summarily dismiss him would not have been taken'.
 
The tribunal awarded the officer $5,000 for non-economic loss. It said he was denied the opportunity to work to the end of his contract, and though it was paid out this did not preclude a finding that the termination constituted a loss. 'Loss or damage is not measured exclusively in economic terms ... The premature termination of his contract caused him embarrassment in the face of his work colleagues and had the potential to damage his reputation with future employers.'
 
See: Kennedy v Director-General, NSW Department of Industrial Relations [2002] NSWADT 186, (September 27, 2002).
 
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