Heber v Glen Henney & Son Pty Ltd (No 2) [2007] NSWADT 230

Heber v Glen Henney & Son Pty Ltd (No 2) [2007] NSWADT 230

Taking Mr Heber's case at its highest, the alleged primary facts that Mr Henney made comments about Mr Heber's age, that Mr Heber was later dismissed, and that other employees were not dismissed could, if proven, support an inference of age discrimination. Although there were credibility concerns and evidentiary difficulties, the allegations were sufficiently clear and substantial to justify a hearing, so the complaint should not be dismissed at the preliminary stage.

Jurisdiction
Australia
Judgment Date
02 October 2007
Procedural Posture
Age Discrimination Complaint Under the Anti Discrimination Act 1977 / Preliminary Matter: Respondent's Application for Dismissal of the Complaint
Outcome
Application for dismissal dismissed.
Legal Topics
['age Discrimination' 'dismissal of Complaint' 'frivolous, Vexatious, Misconceived or Lacking in Substance' 'direct Discrimination' 'comparator and Causation']
['anti Discrimination Law' 'employment Law' 'administrative Law'] ['age Discrimination' 'dismissal of Complaint' 'frivolous, Vexatious, Misconceived or Lacking in Substance' 'direct Discrimination' 'comparator and Causation']

Case Brief

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Procedural Posture

Age Discrimination Complaint Under the Anti Discrimination Act 1977 / Preliminary Matter: Respondent's Application for Dismissal of the Complaint

Legal Issues

  1. 1 ['Whether the Tribunal should dismiss the complaint under s 102 of the Anti-Discrimination Act 1977 on a ground available under s 92(1)(a)(i) or (ii) or s 92(1)(b).' "Whether, taking Mr Heber's evidence at its highest, the complaint of age discrimination had sufficient substance to proceed to hearing." "Whether the asserted lack of an actual comparator and alleged weaknesses in Mr Heber's evidence justified dismissal at the preliminary stage."]

Ratio Decidendi

Taking Mr Heber's case at its highest, the alleged primary facts that Mr Henney made comments about Mr Heber's age, that Mr Heber was later dismissed, and that other employees were not dismissed could, if proven, support an inference of age discrimination. Although there were credibility concerns and evidentiary difficulties, the allegations were sufficiently clear and substantial to justify a hearing, so the complaint should not be dismissed at the preliminary stage.

Court Disposition

Application for dismissal dismissed.

Orders

  • ['Application for dismissal dismissed.' 'The matter is listed for a case conference on Wednesday, 14 November 2007 at 3.15pm to fix a date for hearing.']