Grimsey v Laketrend Pty Ltd[2022] QIRC 32

QUEENSLAND INDUSTRIAL RELATIONS COMMISSION

Reasons for Decision

1. [1]
   Ms Marian Grimsey ('the Complainant') filed a complaint against Laketrend Pty Ltd ('the First Respondent'), Paul Flynn Property Group Pty Ltd ('the Second Respondent') and Mr Paul Flynn ('the Third Respondent') (together, 'the Respondents') alleging contraventions against the Anti-Discrimination Act 1991 (Qld) ('the AD Act'). The Third Respondent is the sole director for the First and Second Respondents and operates the Second Respondent.

2. [2]
   The alleged contraventions relate to direct and indirect discrimination on the basis of age and sex and an unlawful request for information. The burden of proof lies with the Complainant to satisfy the Queensland Industrial Relations Commission ('the Commission'), on the balance of probabilities, that the Respondents contravened the provisions of the AD Act.^[1] In the case of indirect discrimination, the Respondents must prove on the balance of probabilities that a term complained of is unreasonable.^[2]

Background

3. [3]
   The Complainant is a licenced real estate agent with many years' experience working in the real estate industry. The Third Respondent is a real estate agent who operates the Second Respondent. The Complainant and the Third Respondent ('the parties') were known to each other for up to ten years and, although they had not worked in the same office, had previously had professional dealings. They had friends in common and would see each other at professional events however did not have a social relationship outside their professional association.

4. [4]
   Following a meeting between the parties on 13 November 2018, the Third Respondent sent an email to the Complainant. The conduct of the Third Respondent during this meeting and content of the email is the subject of the complaint alleging contravention of the AD Act.

5. [5]
   On 15 November 2018, the Third Respondent sent an email to the Complainant stating the following:

Hi Marian,

I talked to Julie and we both agree. We don't have anything to offer you at the moment.

Even if we did we feel we would want to goneith (sic) someone younger and more tech savey (sic).

Thanks for thinking if (sic) us

Paul (angel emoji)

Paul Flynn^[3]

6. [6]
   The Complainant sent an email in reply to the Third Respondent, stating the following:

Ha Ha thank you Paul.

I notice u (sic) definitely need someone tech savvy! So many spelling mistakes in one short email. Hilarious!

I also hope it comes back to bit Ms Julie on her royal arse that someone would be judged by a photo.

I'm an excellent sales person that has depth of experience, can sell, could run rentals & I am well liked. "Tech savvy" (spelt correctly young Paul) doesn't equate to money. I appreciate there is not (sic) position open currently.

I do however thank you for decency of reply. I'm left not feeling good about myself. Perhaps there is a lesson there for both of you, dare I try to train "younger people".

Paul, I have enjoyed our business over the years.

Kind Regards, Marian Grimsey

...

7. [7]
   The Complainant filed a complaint in the then Anti-Discrimination Commission of Queensland ('ADCQ')^[4] alleging direct and indirect discrimination on the basis of age and an unlawful request for information. The complaint was accepted pursuant to ss 136 and 141 of the AD Act. Following an unsuccessful conciliation at the ADCQ, the matter was referred to the Commission pursuant to s 166(1)(a) of the AD Act.

Complainant's Statement of Facts and Contentions

8. [8]
   The Complainant submits that the Third Respondent unlawfully discriminated against the Complainant in the area of pre-work, under ss 14(a) and (b) and/or (d) of the AD Act.

9. [9]
   It is contended by the Complainant that only the last basis, under s 14(d), is dependent upon proof that the Respondents had work available to offer, and then failed to do so.

10. [10]
    The Complainant contends that the Respondents discriminated against the Complainant on the basis of the attribute of age, pursuant to s 7 of the AD Act by the following conduct:

1. (a)
   asking the Complainant her age and taking her photo, during the course of the 'chat' about possible work, or interview; and

2. (b)
   responding by email to her in the terms:

Even if we did we feel we would want to goneith (sic) someone younger and more tech savey (sic).

11. [11]
    The Complainant notes that s 8 of the AD Act permits reference also to characteristics that older persons generally have and characteristics that are imputed or presumed, submitting that an older appearance is a characteristic that older persons generally have and a lack of technological knowledge is a presumed characteristic of age.

12. [12]
    The Complainant submits that the Third Respondent, as agent for the First and Second Respondents, has discriminated against the Complainant:

1. (a)
   in the arrangements made for deciding who should be offered work; or

2. (b)
   in deciding who should be offered work.

13. [13]
    The conduct alleged is submitted to be both direct and indirect discrimination pursuant to ss 10 and 11 of the AD Act.

14. [14]
    The Complainant's contentions regarding direct discrimination are as follows:

1. (a)
   The Respondents treated the Complainant, being a woman of older age (over 50), less favourably than a younger woman would be treated in circumstances that were the same or not materially different;

2. (b)
   this is particularly apt in respect of the arrangements made by the Respondents for deciding who should be offered work and/or deciding who should be offered work, but also applies in respect of any failure to offer her work;

3. (c)
   if there was more than one reason for taking any of the steps mentioned in the pre-work area, then it is contended that her age was 'a substantial reason for' that treatment, within the meaning of s 10(4) of the AD Act;

4. (d)
   the Respondents treated the Complainant less favourably in the area of pre-work than they would treat another, younger woman (less than 50), in circumstances where that younger woman had approached the Respondents looking for work where no job had been advertised; and

5. (e)
   a hypothetical younger female job seeker would not be:

1. (i)
   excluded from consideration for employment on the basis of old age;

2. (ii)
   judged more carefully on the basis of appearance;

3. (iii)
   excluded from consideration for employment on the basis of appearance;

4. (iv)
   characterised as older looking in appearance and/or lacking in technological knowledge, and therefore, excluded from consideration for employment on the basis of old age; and/or

5. (v)
   not offered a position with the Respondents. 

15. [15]
    The Complainant submits that further, or in the alternative, the discrimination was indirect discrimination within the meaning of s 11(1) of the AD Act, in that the Respondents imposed a term or condition for consideration of employment, or employment with them, that the Complainant be, and appear to be, 'younger' (than 50).

16. [16]
    It is submitted by the Complainant that this was a term:

1. (a)
   with which the Complainant could not comply;

2. (b)
   with which a higher proportion of women who did not have the attribute of older age could comply; and

3. (c)
   that was not reasonable.

17. [17]
    The Complainant contends that youth is not a genuine occupational requirement for the position sought by the Complainant with the Respondents and as such the term is not reasonable.

18. [18]
    The Complainant contends that the Third Respondent's conduct in requesting her age and photograph was an unlawful request for information pursuant to s 124 of the AD Act, referring to similar circumstances in Willmott v Woolworths Ltd ('Willmott').^[5]

19. [19]
    The Complainant contends that the Third Respondent is directly liable for the unlawful discrimination constituted by his own actions and the First and Second Respondents are vicariously liable pursuant to s 133 of the AD Act.

20. [20]
    The Complainant contends that the unlawful discrimination by the Respondents caused her to suffer hurt, distress, humiliation and psychological distress and denied her the opportunity to obtain gainful employment. She submits that she has been unable to work and has since taken an early retirement when she had expected to work for approximately another five years.

21. [21]
    The Complainant submits that her circumstances, including her age, placed her in a vulnerable situation like the airhostesses in Hopper & Ors v Virgin Blue Airlines Pty Ltd ('Hopper')^[6] as she has been a real estate agent for most of her working life.

Respondents' Response

22. [22]
    The Respondents were not legally represented during this matter and filed a response to the Complainant's statement of facts and contentions drafted by the Third Respondent.

23. [23]
    The relevant aspects of the response can be summarised as follows:

1. (a)
   The Complainant contacted the Third Respondent several times prior to the 12 November and although he did not initially agree to meet, he did so after the Complainant 'kept hounding' him;

2. (b)
   the Third Respondent told the Complainant he had no positions available but after continued approaches, he asked the Complainant to 'come around for a coffee and catch up' as they had not seen each other for a couple of years;

3. (c)
   the catch up and coffee was held in the Third Respondent's office, however it may as well have been at a coffee shop outside. The Third Respondent offered to meet her at his home on the Gold Coast, however she chose to come to the office at Springwood;

4. (d)
   the catch up was not a job interview and the Complainant did not bring a resume or other paperwork;

5. (e)
   the catch up with the Complainant was not to discuss work possibilities as he was under the impression that the Complainant was already employed by 'All Suburbs Real Estate' as indicated in her email signature block;

6. (f)
   the Third Respondent took the photo only after consent had been given by the Complainant;

7. (g)
   the Complainant was told before the 'catch up' that there was no job available;

8. (h)
   the Third Respondent did not show Julie the photo or consult her about the Complainant as there was no position;

9. (i)
   with regard to the email to the Complainant, the Third Respondent considered that he was sending an email to a 'friend' who he had known for 10 years;

10. (j)
    the Complainant admits in her email reply that she was aware that no position was available;

11. (k)
    three months after the meeting a position became available and was filled by Ms Therese Zuanetti, who is of a similar age with similar experience and background to the Complainant;

12. (l)
    20 to 30% of the Respondents' employees are older (people in their 60s) and not tech savvy; and

13. (m)
    the Complainant made herself unemployable due to her reputation and attitude.

24. [24]
    The Third Respondent further stated the following:

The applicant was pushy and would not leave. With no job on offer there was not much to talk about. I wanted her to leave but she just sat there. Saying nothing. And the feeling I got was that she wasn't going to leave till she got her way. To be polite so I said this to get rid of               her. There was nothing to discuss.

There was never a job available.

Statutory framework

25. [25]
    Part 2 of Chapter 2 of the AD Act identifies 'Prohibited grounds of discrimination'. Section 7 prohibits discrimination on the basis of various defined 'attributes:

7 Discrimination on the basis of certain attributes prohibited

The Act prohibits discrimination on the basis of the following attributes—

1. (a)
   sex;

…

6. (f)
   age;

…

26. [26]
    Part 3 of Chapter 2 of the AD Act identifies 'Prohibited types of discrimination'. Section 9 prohibits 'direct' and 'indirect' discrimination, while ss 10 and 11 define the meaning of direct and indirect discrimination:

10 Meaning of direct discrimination

3. (1)
   Direct discrimination on the basis of an attribute happens if a person treats, or proposes to treat, a person with an attribute less favourably than another person without the attribute is or would be treated in circumstances that are the same or not materially different.

Example—

R refuses to rent a flat to C because—

• C is English and R doesn't like English people

• C's friend, B, is English and R doesn't like English people

• R believes that English people are unreliable tenants.

In each case, R discriminates against C, whether or not R's belief about C's or B's nationality, or the characteristics of people of that nationality, is correct.

3. (2)
   It is not necessary that the person who discriminates considers the treatment is less favourable.

3. (3)
   The person’s motive for discriminating is irrelevant.

Example—

R refuses to employ C, who is Chinese, not because R dislikes Chinese people, but because R knows that C would be treated badly by other staff, some of whom are prejudiced against Asian people. R's conduct amounts to discrimination against C.

3. (4)
   If there are 2 or more reasons why a person treats, or proposes to treat, another person with an attribute less favourably, the person treats the other person less favourably on the basis of the attribute if the attribute is a substantial reason for the treatment.

3. (5)
   In determining whether a person treats, or proposes to treat a person with an impairment less favourably than another person is or would be treated in circumstances that are the same or not materially different, the fact that the person with the impairment may require special services or facilities is irrelevant.

11 Meaning of indirect discrimination

3. (1)
   Indirect discrimination on the basis of an attribute happens if a person imposes, or proposes to impose, a term—

1. (a)
   with which a person with an attribute does not or is not able to comply; and

2. (b)
   with which a higher proportion of people without the attribute comply or are able to comply; and

3. (c)
   that is not reasonable.

3. (2)
   Whether a term is reasonable depends on all the relevant circumstances of the case, including, for example—

1. (a)
   the consequences of failure to comply with the term; and

2. (b)
   the cost of alternative terms; and

3. (c)
   the financial circumstances of the person who imposes, or proposes to impose, the term.

3. (3)
   It is not necessary that the person imposing, or proposing to impose, the term is aware of the indirect discrimination.

3. (4)
   In this section—

term includes condition, requirement or practice, whether or not written.

Example 1—

An employer decides to employ people who are over 190cm tall, although height is not pertinent to effective performance of the work. This disadvantages women and people of Asian origin, as there are more men of non-Asian origin who can comply. The discrimination is unlawful because the height requirement is unreasonable, there being no genuine occupational reason to justify it.

Example 2—

An employer requires employees to wear a uniform, including a cap, for appearance reasons, not for hygiene or safety reasons. The requirement is not directly discriminatory, but it has a discriminatory effect against people who are required by religious or cultural beliefs to wear particular headdress.

27. [27]
    An analysis of 'circumstances that are the same or not materially different' involves consideration of a comparison with a person without the particular attribute but otherwise in the same position as the Complainant.^[7] The Complainant submits that the relevant hypothetical comparator is a younger woman (under 50) in circumstances that are the same or not materially different.

28. [28]
    Part 4 of Chapter 2 of the AD Act identifies 'Areas of activity in which discrimination is prohibited'. Division 2 of Part 4 deals with 'Work and work-related areas'. Section 14 identifies types of discrimination in the area of 'pre-work':

14 Discrimination in the pre-work area

A person must not discriminate—

1. (a)
   in the arrangements made for deciding who should be offered work; or

2. (b)
   in deciding who should be offered work; or

3. (c)
   in the terms of work that is offered, including, for example, a term about when the work will end because of a person’s age; or

4. (d)
   in failing to offer work; or

5. (e)
   by denying a person seeking work access to a guidance program, an apprenticeship training program or other occupational training or retraining program; or

6. (f)
   in developing the scope or range of such a program.

29. [29]
    Section 124 of the AD Act prohibits the request of information on which unlawful discrimination might be based. It will not be an unlawful request for information if the respondent proves, on a balance of probabilities, that the information was reasonably required for a purpose that did not involve discrimination:

124 Unnecessary information

3. (1)
   A person must not ask another person, either orally or in writing, to supply information on which unlawful discrimination might be based.

3. (2)
   Subsection (1) does not apply to a request that is necessary to comply with, or is specifically authorised by—

1. (a)
   an existing provision of another Act; or

2. (b)
   an order of a court; or

3. (c)
   an existing provision of an order or award of a court or tribunal having power to fix minimum wages and other terms of employment; or

4. (d)
   an existing provision of an industrial agreement under the repealed Industrial Relations Act 1999; or

5. (e)
   an order of QCAT or the industrial relations commission.

3. (3)
   It is a defence to a proceeding for a contravention of subsection (1) if the respondent proves, on the balance of probabilities, that the information was reasonably required for a purpose that did not involve discrimination.

3. (4)
   In this section—

existing provision means a provision in existence at the commencement of this section.

Example—

An employer would contravene the Act by asking applicants for all jobs whether they have any impairments, but may ask applicants for a job involving heavy lifting whether they have any physical condition that indicates they should not do that work.

Complainant's submissions

30. [30]
    The Complainant submits that the Third Respondent did three things in November 2018 which indicate that her exclusion from consideration for employment with him was on the basis of her age:

1. (a)
   when meeting with her and discussing work possibilities, he asked for her age;

2. (b)
   he then asked to take her photo and did so; and

3. (c)
   after the meeting, he sent her an email saying there was no position available, but even if there was, he '…would have goneith (sic) someone younger…'.

31. [31]
    The Complainant refers to the Third Respondent's evidence in which he stated:

1. (a)
   he was 'coaxed' into the meeting;

2. (b)
   there was no job available for her; and

3. (c)
   he engaged in a ruse of taking her photo and saying he would speak to Julie to 'get rid of her'.

32. [32]
    The Complainant submits that these comments reflected the nature of the arrangements the Third Respondent had in place in the course of his business for deciding who should be offered work at that time;^[8] or, at least, the consideration he was bringing to bear on the question whether the Complainant should be offered work or not;^[9] if not also a substantial reason for not doing so.^[10]

33. [33]
    The Complainant submits that the Third Respondent's primary contention that no work was available sits uneasily with the evidence called by him about how employment arrangements are usually struck. Employment arrangements came about informally, without advertising or formal interview. This was what occurred in respect of the two other employment arrangements the Third Respondent put before the Commission in oral evidence – the employment of Mr Damian Gration and the employment of another woman three months later.

34. [34]
    The following submissions were made by the Complainant with respect to the nature of the Respondents' business:

1. (a)
   The Third Respondent has had his own real estate agency for about 25 years. Over that time, he had employed hundreds of employees, including real estate agents and rental agents;

2. (b)
   his business had no anti-discrimination policy applicable to interviewing or hiring individuals but he understood non-discrimination was part of employment contracts;

3. (c)
   at the time of hearing, the business has six full-time employees and six contractors. There were similar staff levels at the time the Third Respondent met with the Complainant with one real estate agent change and one to two rental manager changes in the two years since;

4. (d)
   the Third Respondent ran his own business with no pre-determined limit to the number of employees. Work fluctuated, as did the need for employed or contract-based sales and rentals staff and if someone came to him that he knew, he was open to considering whether their employment would meet the business needs of his agency;

5. (e)
   the Third Respondent had recently upsized his work premises and was looking to increase his staff in rentals; and

6. (f)
   even if not advertised, the work of the kind the Complainant was looking for was 'available', the possibility of the Third Respondent hiring or contracting with new sales or rentals staff was reasonably open at the time he met with her.

35. [35]
    The Complainant submits the following with respect to the Complainant's case:

1. (a)
   The Complainant telephoned the Third Respondent in November 2018 because she was looking for work. She had a couple of conversations with him and sent a SMS message to arrange the meeting. When they spoke, the Complainant told him she had heard he had moved premises and told him, 'I'm looking for work. I'm looking for a change.' He agreed to catch up with her, possibly over a coffee, and there was no reluctance on his part expressed to her in doing so;

2. (b)
   the Complainant conceded in oral evidence the possibility that the Third Respondent did tell her on the phone beforehand that he was not sure whether there were any positions available at the time, however the conversation they had did not close off that possibility;

3. (c)
   at the meeting on 13 November 2018, the parties discussed the Complainant being out of work and what sort of work she was seeking. The Third Respondent asked questions about her experience with computer systems and asked what she wanted to do work wise and when she indicated rentals, he asked her about her experience in rentals. He said nothing about any concerns he had about her character or the quality of her work;

4. (d)
   during the meeting the Third Respondent asked the Complainant her age, saying 'he just wanted to know'. The Complainant reluctantly gave her age. He then indicated that he wanted to take her photo, telling her 'I always take photos of the people that I interview and I will just show the photo to Julie';

5. (e)
   the meeting ended amicably with the Third Respondent saying he was not sure about the possibility of work but he would discuss it with Julie and see. The Complainant does not recall feeling she was unwelcome or being urged to leave, although she felt nervous and was surprised when he asked her about her age and took her photo; and

6. (f)
   after the meeting, the only communications between the parties were the Complainant's SMS message to the Third Respondent thanking him for meeting with her, then his email of 15 November 2018 and her reply email.

36. [36]
    The Complainant submits that after the experiences in the meeting and then receiving the email, she felt 'gutted' and it 'knocked' her confidence. She cancelled a job interview she had scheduled and ultimately got excused on medical grounds from Centrelink requirements for searching for work, until she took an early retirement six months later.

37. [37]
    The Complainant made the following submissions regarding the Respondents' case:

1. (a)
   In response to his contention that the Complainant kept hounding him to meet, the phone records indicate that the contact was much more limited than that;

2. (b)
   the Third Respondent made a number of concessions in oral evidence that undermine his evidence on this issue. He accepted that they had not met solely for social reasons before and agreed that she told him she was looking for work. His agreement to meet in light of this knowledge suggests an openness to discussion of work opportunities;

3. (c)
   the Third Respondent believed there were more communications than those reflected in the phone call records and messages exhibited in the proceedings, but did not have any recollection of any specific ones. He accepted he never communicated to her that he would not meet with her;

4. (d)
   the Third Respondent's assertion that he told the Complainant categorically before the meeting that he had no work available is not compelling in light of the fact he told her in the meeting that he was unsure and in his affidavit he described his email sent two days later having 'made it definite that we had nothing';

5. (e)
   the Third Respondent agreed that he asked the Complainant what she was looking to do for work, that she mentioned both sales and rentals and there was a discussion about re-training;

6. (f)
   the Third Respondent agreed that he asked the Complainant her age and asked to take her photo. He could not recall saying that he always took photos for interview purposes but it was possible he did;

7. (g)
   the Third Respondent told the Complainant that he was not sure about work possibilities but that he would check with Julie, who was in charge of rentals;

8. (h)
   the meeting ended on friendly terms and the Complainant may have left with the impression there was a job possibility with him;

9. (i)
   whilst he maintained she was pushy in the meeting, and would not leave when it was evidently over, he agreed that he did not feel any pressure from the Complainant;

10. (j)
    whilst the Third Respondent agreed, as indeed each witness did, that presentation is a relevant factor in real estate work, he did not assert that he took the photo for that purpose. Rather, he said this act was in truth a ruse 'to try to flog her off because I couldn’t get rid of her'. So too was saying he would check with Julie. Somewhat inconsistently, he also said that photos were just his way of recording his day;

11. (k)
    the Third Respondent did not give any explanation for asking the Complainant her age. When it was suggested to him that he only asked her age in the meeting because he thought she was too old to hire, he denied this. He said there was no job on offer, or any reasonable possibility of one;

12. (l)
    neither did the Third Respondent explain why he sent an email in the terms he did. He denied that the terms of his email revealed the reason that he was not offering her a job. He again said there was no job available and her age had nothing to do with his response;

13. (m)
    the Third Respondent's claim that the Complainant 'continued to harass me about work even after this catch-up coffee' should be rejected, in light of his acceptance that the subsequent communications were limited to the follow-up text and email exchange; and

14. (n)
    to support the Third Respondent's assertion that he does not have a discriminatory approach in precluding women of a certain age from employment in sales roles, he relies upon his employment of Ms Carolyn Marchmont (age 60) and Mr Gration (age 66). These individuals' circumstances are not sufficiently similar to permit the drawing of inferences about his conduct towards the Complainant. Mr Gration is male and Ms Marchmont, who was not called in person, is employed as an in-office staff member. Further, the Third Respondent's conduct after the fact may well have been influenced by what had occurred with the Complainant. It does not provide a suitable basis from which to inform the nature of the Third Respondent's treatment of the Complainant.

38. [38]
    The Complainant made submissions regarding the proper respondent in this matter, noting that the First and Second Respondents have been pleaded as vicariously liable under s 133 of the AD Act for the Third Respondent's contravention.

39. [39]
    The Complainant submits that the purpose of having extended liability under the AD Act is to ensure any financial order can be met as well as to emphasise the importance for employers to implement effective education programs to limit discriminatory conduct by employees and agents.

40. [40]
    The exact role of the First and Second Respondents was only revealed in the Third Respondent's sworn evidence, with neither of these Respondents operating his business, Paul Flynn Property Group. The company that does so is Logan City Real Estate Pty Ltd, for which the Third Respondent is the sole director and one of two shareholders, alongside his business partner.

41. [41]
    The Complainant submits that the Commission, pursuant to s 539(b)(iv) of the Industrial Relations Act 2016 (Qld) ('IR Act') direct the joinder of Logan City Real Estate Pty Ltd as a Fourth Respondent on the basis that the directorship and shareholding is the same and so there is no prejudice in joining at this stage.

42. [42]
    Remedies sought by the Complainant are damages for humiliation, distress, and loss of confidence caused by the breach of s 124 of the AD Act, and the discrimination and damages for loss of opportunity along with an apology.

Respondents' submissions

43. [43]
    The Respondents' submissions were as follows:

1. This was nothing more than two old friends/acquaintances catching up for a coffee.
2. There was never a job on offer. The applicant new (sic) that before coming to see me.
3. It was the applicant that wanted to catch up, not me.

Evidence

44. [44]
    The Third Respondent gave evidence that the reason the Complainant was not able to find other work was because of her poor reputation in the industry. He called Ms Kathy Seidler to give evidence regarding her experiences with the Complainant. Whilst Ms Seidler's evidence may have been relevant in assessing potential damages, I do not consider her evidence relevant in determining if the Respondents contravened the AD Act.

45. [45]
    Ms Naomi Browning and Ms Amanda Wilson were former co-workers of the Complainant who provided statements but did not provide oral evidence. The statements were supportive of the Complainant, although I note that Ms Browning did not provide oral evidence as she disagreed with the claim being pursued.

46. [46]
    Ms Rae Hart is a personal friend of the Complainant who gave evidence supportive of the Complainant's character.

47. [47]
    Mr Damian Gration gave evidence as an employee of the Respondents.

48. [48]
    The Third Respondent gave evidence both in affidavit form and at the hearing.

49. [49]
    The Complainant gave evidence both in affidavit form and at the hearing.

Consideration

50. [50]
    The Complainant contends that the Third Respondent treated her less favourably within the meaning of s 10(1) on the basis of her age (over 50) and a characteristic of it, namely, her older appearance, than he would have treated a younger woman (under 50) in circumstances that are the same or not materially different.

51. [51]
    The less favourable treatment relied upon by the Complainant is:

1. (a)
   disqualifying any woman of her age or with an older appearance from consideration for employment, in the arrangements he had within his agency for deciding who should be offered work;^[11] and/or

2. (b)
   excluding the Complainant from consideration for employment on the basis of her age or older appearance, in deciding who should be offered work (in respect of any current or potential job opportunity);^[12] and/or

3. (c)
   not offering her work on the basis of her age or older appearance.^[13]

52. [52]
    Section 6 of the AD Act provides that prohibited discrimination requires the existence of a specified ground, of a specific type, and in a specified area of activity, with all three components necessary to establish a contravention.^[14]

53. [53]
    In this matter, the Complainant alleges the prohibited ground of discrimination was age and sex; the type of discrimination was both direct discrimination and indirect discrimination, and the area of discrimination was the pre-work area.

54. [54]
    Section 14 prohibits discrimination in the pre-work area. The Complainant contends that the relevant conduct contravened ss 14(a), (b) and (d) of the AD Act.

55. [55]
    On 13 November 2018, the Complainant attended the Respondents' place of business to attend a pre-arranged 'catch up' with the Third Respondent. The Complainant submits that she had sought to arrange the meeting as she was seeking work as a real estate agent in sales and/or rentals in the Third Respondent's businesses.

56. [56]
    The context to the meeting was disputed, with the Third Respondent giving evidence that he had only agreed to meet with the Complainant after she 'hounded' him for a meeting. The Complainant's evidence was that there were one or two phone calls to the Third Respondent's office, however, the Respondent contends that there was an additional call to his mobile and text message. The Complainant's phone records indicate that two calls were made from her phone to the Third Respondent's office. The Complainant's oral evidence regarding the lead up to the meeting was unclear, and she appeared unable to clearly recall the number of times and the methods used to make contact with the Third Respondent. This was an understandable memory lapse and hence, I do not consider that the Complainant was evasive.

57. [57]
    Regardless of the exact number of times the Complainant attempted to make contact, it is reasonable to accept that more than one message may have resulted in the Third Respondent feeling 'hounded' in his evidence, and that he agreed to meet with the Complainant somewhat reluctantly.

58. [58]
    The Complainant gave evidence that the Third Respondent asked her about the type of work she wanted to do and whether she would be interested in training. The Complainant submits that during the meeting the Third Respondent asked her age and took a photograph of the Complainant. The Complainant gave evidence that she asked the Third Respondent why he asked her age, to which he replied, 'I just want to know'. The Complainant gave evidence that when she asked the Third Respondent why he took a photograph of her, he said that he did it for all interviews so he could show Julie what the Complainant looked like.

59. [59]
    The Third Respondent's evidence was that the meeting became 'awkward' and when it seemed that the Complainant looked like she was not going to leave he asked if he could take her picture to show Julie. The Third Respondent's evidence was that this was done to end the meeting, but that he did not show the photo to Julie as there was no position available.

60. [60]
    The Third Respondent's evidence was that he told the Complainant that he had no vacancies prior to the meeting. The Complainant's evidence was that he 'probably' did say that he was not sure if there were any positions available prior to the meeting. The email from the Complainant to the Third Respondent following the meeting confirmed her understanding that there were no vacant positions at that time.

61. [61]
    The Complainant gave evidence that towards the end of the meeting, the Third Respondent said that he did not think there was any work available at the moment, but he would need to talk to Julie and get back to her

62. [62]
    The Complainant also gave the following evidence:

Counsel: Did Paul ever say to you when you were talking to him before the meeting whether there was any work available or anything like that in his workplace?

Complainant: It's been a while, I must admit. But I can probably say that I think he did say that he wasn't sure whether there were any positions available at this time.^[15]

63. [63]
    The Complainant gave the following evidence in cross-examination:

Third Respondent: …Was there a position – were you ever told there was a position available for you at or before that catch-up?

Complainant: No.^[16]

64. [64]
    The Third Respondent gave consistent evidence under cross-examination that there was never a position available and he only met with the Complainant at her insistence out of 'kindness'.

65. [65]
    The Third Respondent gave evidence that his employment arrangements did not change significantly in the years following the meeting with the Complainant, with approximately the same number of staff employed over that period of time. 

66. [66]
    The evidence that a new employee was hired three months after this meeting supports an inference that there were no positions available at the time of the meeting. One could reasonably assume that if the business required a new employee at the time of the November meeting, it would have employed a person within that three month period. I note the person hired, Ms Zuanetti, was employed in the position of property management and administration and not in sales.

67. [67]
    The Complainant notes that the last employee hired by the Respondents was not the result of an advertised vacancy. If this employee was hired into a role that the Complainant had expressed interest at a time soon after the meeting in November, an argument may be sustained that there was, in fact, a decision as to who should be offered work. However, in this matter the employee was not hired until three months after the November meeting and in a role involving property management and administration rather than real estate sales. The Third Respondent's evidence was that the new employee was hired after two employees resigned in the period after his meeting with the Complainant.  The evidence does not support the contention that there was work available with the Respondents at the time the Complainant met with the Third Respondent or soon after.

68. [68]
    I accept the Third Respondent's evidence that he agreed to meet with the Complainant at her instigation and that he had informed the Complainant that his business had no vacancies at the time. Whilst I accept the Complainant's submission that the nature of the business was such that some employees were hired without a vacancy being advertised, in this case there was simply insufficient evidence to support that there was a vacancy. 

69. [69]
    The Complainant refers to Holdaway v Qantas Airways Limited ('Holdaway'),^[17] a decision of the New South Wales Equal Opportunity Tribunal which considered the Anti-Discrimination Act 1977 (NSW), Y v Human Rights & Equal Opportunity Commission,^[18] a decision of the Federal Court considering the equivalent sections in the Disability Discrimination Act 1992 (Cth) and Bloomfield v Westco Jeans Pty Ltd ('Bloomfield'),^[19] a decision of the ACT Discrimination Tribunal considering the Discrimination Act 1991 (ACT).

70. [70]
    The Complainant also referred to Eyden v Commonwealth^[20] which considered that the various limbs of the Disability Discrimination Act 1992 (Cth) may have overlapping application of similar sections to s 14 of the AD Act, and Hopper.

71. [71]
    The cases referred to by the Complainant, whilst helpful as general guides for interpretation, provide limited assistance in this matter due to the different factual contexts. The facts of Holdaway involved termination of employment on the basis of a relevant attribute; Y v Human Rights & Equal Opportunity Commission involved applicants undertaking an examination leading to an order of merit for appointment to vacancies; Hopper involved job interviews to vacant positions and in the case of Bloomfield, the complainant had responded to a sign on the respondent's business premises that invited expressions of interest for employment with the respondent.

72. [72]
    I am instead guided by the case of Tully v McIntyre ('Tully'),^[21] in which the Queensland Court of Appeal considered a similar factual scenario to this matter in that the Complainant had sought to be considered for employment where no vacancy existed at the time. This decision was made pursuant to the same provisions of the AD Act in the Queensland jurisdiction as relevant in this matter. 

73. [73]
    Section 14 was considered in Tully in which the Queensland Court of Appeal stated:^[22]

It is clear enough that the offering of an insult or the making of inappropriate statements is not per se prohibited by the Act, except in specific instances such as incitement to racial hatred, discriminatory advertising, and other particular forms of objectionable conduct set out in parts 4 and 5 of the Act. So far as Chapter 2 (prohibited discrimination) is concerned the Act does not penalise freedom of expression unless all the requirements of prohibited discrimination are present. The Act does not per se render a person liable to pay damages for making politically incorrect statements. It is not the use of hurtful words that is proscribed, but rather the act of discrimination.^[23]

74. [74]
    Section 14(1)(a) was considered in Tully in which the Court stated:

…Insofar as any case under s 14(1)(a) is concerned, it would still be necessary that an offer of work be in the view of the parties. Section 14(1)(a) seems primarily designed to catch the situation where any employer has a position to offer and sets about arranging the criteria for appointment…^[24]

75. [75]
    For the reasons outlined above, I accept that there was no position to offer and as such no criteria was being arranged for any such appointment. Applying the rationale in Tully, there could be no offer of work in the view of the parties and so there was no contravention of s 14(a).

76. [76]
    Section 14(b) prohibits discrimination 'in deciding who should be offered work', which carries an implication that a decision is to be made about which person should be offered work. In the circumstances of this matter in which there was no position available, no decision was made as to who should be offered work. There was therefore no contravention of s 14(b).

77. [77]
    The Complainant also alleged a contravention of s 14(d), however as outlined in Tully, all other subparagraphs of s 14 'necessarily envisages the existence of a situation where work is to be offered'.^[25] The Court noted that s 14(d) does not create a duty on employers to create positions and offer them. I do not consider that s 14(d) was contravened by the conduct of the Third Respondent on the basis that the evidence confirms that there was no work available to offer at the relevant time.

78. [78]
    In consideration of the 'possibility' of a position being made available, the Court in Tully stated:

…It is of course true that any commercial organisation or even small business could always reorganise its business so as to make additional positions available. In that sense there is always a possibility of a position or of an offer of work. However such a theoretical possibility is not in our view one that activates any part of s 14(1). Actual rather than theoretical situations are contemplated by s 14 to s 23 which deal with various areas of discrimination…^[26]

79. [79]
    The circumstances of this matter are not unlike that in Tully, in that whilst there may always be a possibility of work, such a possibility was theoretical only at the time of the meeting between the parties.

80. [80]
    The Complainant submits that the nature of the Respondents' business was that the Third Respondent had the ability to '[decide] who should be offered work at that time'. The Court in Tully considered circumstances in which a person may be offered work despite their being no position on offer at the time:

…The possibility of employment of additional salespersons was no higher than that in any business which might be persuaded to employ additional staff but which did not have any immediate plans to do so. Such a situation does not in our view satisfy the requirements of s 14 in the event that an ignorant or discriminatory comment is made in the course of a solicitation by an interested person for a position to be created.^[27]

81. [81]
    The Court in Tully made the following determination with respect to allegations of discrimination in similar factual circumstances:

…In the absence of an actual situation pertaining to an offer of work, the making of an unfortunate or hurtful statement does not create an entitlement to compensation to the person to whom it is made. A statement such as "we have a policy of affirmative action in favour of youth" would not create a right to compensation. Neither would "we do not have a position in the area in which you are interested, but if we did we would not employ you because you are too old". As mentioned earlier an act of discrimination must be shown, and the speaking of inappropriate words does not necessarily establish such an act.^[28]

[emphasis added]

82. [82]
    If the same facts had occurred in circumstances in which the possibility of a vacancy was more than theoretical in nature, the text message from the Third Respondent would be, in my view, sufficient evidence of an intention to treat the Complainant less favourably on the grounds of her age and as such a contravention of s 10. The contention that indirect discrimination occurred as a term of youth could also potentially be sustained. However, pt 4 of the AD Act outlines specific areas of activity in which discrimination is prohibited, and discriminatory conduct outside of these areas do not amount to a contravention of the AD Act.

83. [83]
    I am satisfied that the Third Respondent did not have any positions available and consequently, no arrangements or decisions were made to determine who should be offered work. The lack of cogent evidence that there was work to be offered in this matter necessitates a finding that there could not have been a contravention of ss 14(a), (b) or (d) of the AD Act.

84. [84]
    The second issue to be determined is the claim that the Third Respondent contravened s 124 of the AD Act in asking the Complainant for her age and to take her photograph.

85. [85]
    Section 124(1) provides that a person must not ask another person, either orally or in writing, to supply information on which unlawful discrimination might be based. It is a defence to a proceeding for a contravention of s 124(1) if the Respondent proves, on the balance of probabilities, that the information was reasonably required for a purpose that did not involve discrimination.^[29] The Respondents did not contend that the request for information was authorised pursuant to s 124(2).

86. [86]
    The Complainant asserts that in the absence of any reasonable non-discriminatory basis for making the request regarding the Complainant's age, a contravention of s 124 of the AD Act is made out.^[30]

87. [87]
    The Third Respondent asked the Complainant her age as part of a conversation and requested to take her photograph. The Third Respondent submitted that he did not seek the information from the Complainant for discriminatory purposes as there was no position available and he asked the question because 'he just wanted to know'.

88. [88]
    The interpretation of s 124(1) requires consideration of the words 'to supply information on which unlawful discrimination might be based'. This section must be read in the context of the AD Act as a whole, including the purpose of the AD Act. As outlined above, 'unlawful discrimination' or 'prohibited discrimination' is direct or indirect discrimination^[31] based on a particular attribute^[32] in a specified area of activity.^[33] Conduct is not unlawful discrimination if it does not occur pursuant to the three provisions of the AD Act. 

89. [89]
    In this matter, s 6(2)(a)(iii) is not satisfied as the conduct did not occur in the 'pre-work' area of activity. Consequently, it was not possible for unlawful discrimination to be based on the request for information as it did not occur in an area of activity pursuant to ch 2 pt 4 of the AD Act.

90. [90]
    The Complainant's reference to Willmott does not assist as the unnecessary request for information in that matter occurred as part of an online job application process. In that matter, the information request clearly occurred within the pre-work area and so was capable of forming the basis upon which discrimination might be based. 

91. [91]
    I note that s 124 provides that it is unlawful to request information upon which unlawful discrimination 'might be based'. In most circumstances in which s 124(2) does not apply, it would generally be the case that requesting information about a person's age at a job interview would be in contravention of s 124 because the information 'might' form the basis of discriminatory conduct. In those circumstances, it is not necessary to show that the person was in fact subject to unlawful discrimination, only that they 'might' have been based on the information provided. The difference with the circumstances in this matter is that the unlawful request for information could not have formed the basis for unlawful discrimination as it did not occur in an area of activity provided for in ch 2 pt 4 of the AD Act.

92. [92]
    To determine that the Third Respondent contravened s 124 in circumstances that were outside the legislated areas of activity would be to impermissibly extend the operation of s 124 of the AD Act. To determine otherwise would be to consider that any inquiry regarding a person's age may be a contravention of the AD Act despite the inquiry occurring in an area of activity not included in ch 2 pt 4 of the AD Act, for example an inquiry into a person's age in a social context.

93. [93]
    In the absence of a finding that the AD Act has been contravened, it is not necessary to address the grounds relating to the assessment of compensation or the issue of joinder.

Conclusion

94. [94]
    I have carefully considered all of the evidence in this matter and determined that the Third Respondent did not contravene ss 6 or 124 of the AD Act as the relevant conduct did not occur in the pre-work area.

95. [95]
    I note the Complainant's compelling evidence regarding the impact of the Third Respondent's email on her mental health. I accept that the Complainant felt upset, humiliated and distressed by the Third Respondent's email. However, as noted by the Court in Tully, it is not the use of hurtful words that is proscribed by the AD Act,^[34] but rather the act of discrimination. The conduct, although in my view entirely inappropriate, did not occur in the pre-work area in accordance with s 14 and therefore cannot be considered prohibited discrimination in accordance with s 6. As discussed above, it follows that there has been no contravention of s 124 on the basis that there was no unlawful discrimination.

96. [96]
    No submissions were made with respect to costs and I do not consider the interests of justice require the making of a costs order in this matter.^[35] Accordingly, pursuant to s 2 of sch 2 of the IR Act, each party are to bear their own costs of the proceeding.

Order

97. [97]
    I make the following orders:

1. The complaint is dismissed.
2. I make no order as to costs.