Choong v Bridgestone Australia Ltd - [2009] SAEOT 8

EQUAL OPPORTUNITY TRIBUNAL
(District Court Administrative and Disciplinary Division)
CHOONG v BRIDGESTONE AUSTRALIA LTD
[2009] SAEOT 8
Judgment of Her Honour Judge Cole, Member Ms A Bachmann and Member Ms H Jasinski
9 September 2009
DISCRIMINATION LAW
Allegation of discrimination in an employment context on the basis of age - whether a permanent position of boiler attendant was not offered to complainant because of his age - whether complainant's services dispensed with because of his age - finding that age was not a factor - complaint dismissed.
Equal Opportunity Act 1984 s 85A, s 85B and s 85D, referred to.

CHOONG v BRIDGESTONE AUSTRALIA LTD
[2009] SAEOT 8

Mr Choong made a complaint to the Commissioner for Equal Opportunity (the Commissioner) against Bridgestone Australia Pty Ltd (Bridgestone). Mr Choong complained that he had been discriminated against in an employment context on the basis of his age, contrary to the provisions of the Equal Opportunity Act 1984. Attempts to conciliate the complaint were unsuccessful, and the Commissioner referred the matter to this Tribunal for hearing and determination.
At the hearing of the complaint, Mr Clarke, an advocate, represented Mr Choong, and Mr Choong gave evidence in his own case. Mr Wallwork was counsel for Bridgestone. Mr Alan Blakemore, the maintenance manager at Bridgestone’s Salisbury factory, and Mr Ray Zielonka, the engineering manager at Bridgestone’s Salisbury factory, both gave evidence in Bridgestone’s case.
The Facts
Mr Choong was born in Malaysia. He came to Australia in 1986. He was employed by the Royal Adelaide Hospital as a boiler attendant for about three years. He then ran his own noodle bar for eight years, following which he joined Skilled Engineering for about six years, as a filter and boiler attendant. He then worked for Adelaide Industrial Labour Hire Service until 2007. Mr Choong is qualified as both a fitter and a boiler attendant.
In March 2007, Mr Choong was approached by Montica Pty Ltd (Montica), a labour hire company. Montica was seeking a boiler attendant to work at Bridgestone’s factory at Frost Road, Salisbury. Mr Choong accepted a position with Montica to work at the Bridgestone factory from 26 March 2007 until 30 March 2007. Mr Choong began working at the Frost Road factory on 26 March 2007. He continued to work there until 3 January 2008.
Mr Choong’s account of the events which occurred during his time at the Bridgestone factory differed in many respects from the accounts given in evidence by Mr Blakemore and Mr Zielonka.
It was common ground that, at the time that Mr Choong was first engaged at the Salisbury factory, Bridgestone was dealing with industrial action which had arisen in the course of negotiating an enterprise bargaining agreement. The purpose of engaging Mr Choong, through Montica, was to enable Bridgestone to have the capacity to keep the boilers at the factory running even if the factory employees withdrew their labour. It was common ground that the circumstances of Mr Choong’s first appearance at the factory led to some resentment of him by some of Bridgestone’s employees. When Mr Choong began his time at the factory, Bridgestone had three boiler attendants on staff; Larry Stanojevic, Michael Harker and Amrik Thandi. Amrik Thandi, however, was not working due to injuries sustained in a car accident. Another boiler attendant, Trevor Datsopoulos, was working at the factory, having been engaged through a labour hire company called Temp-Team. Paul Amos, a qualified fitter and boiler attendant, was also working at the factory, but was not included in the boiler house shifts.
Mr Choong gave evidence that, on his first day at the factory, Mr Blakemore showed him around the factory, and asked him if he could operate the boilers. Mr Choong said that he could. Mr Choong gave evidence that Mr Blakemore then offered to engage him for a period of two weeks (rather than the period of days originally arranged), but that Mr Choong refused this offer because Mr Choong did not wish to be unavailable for work elsewhere for so long, and Mr Choong did not wish to get involved in a labour dispute.
Mr Choong said that, on his second day at the factory, Mr Blakemore came to see him and offered him a position as a boiler attendant from 31 March 2007 until Mr Choong’s certificate of competency as a boiler attendant expired on 28 July 2009, when he would turn 65 years of age. Mr Choong indicated that it was his understanding that this offer was an offer of employment with Bridgestone, not Montica. Mr Choong said that Mr Blakemore handed him a bundle of 131 weeks of clock cards and said that if those clock cards were not enough to last him until he retired, he could ask for more. In evidence, Mr Blakemore denied that he had offered Mr Choong employment for a period of two weeks. Mr Blakemore further denied that Mr Choong had ever refused an offer of an extension to his time at the Bridgestone factory. Mr Blakemore’s evidence was that Mr Choong agreed to continue in the role of boiler attendant until the industrial action was finalised. Mr Blakemore said that Mr Choong had never mentioned that he had other work elsewhere. Mr Blakemore said that when the industrial action had finished, an opportunity arose to move Michael Harker out of the boiler room and into the tool room, which was Mr Harker’s preference, with the result that Mr Choong’s placement could be extended. In relation to the clock cards, Mr Blakemore said that he gave Mr Choong about ten clock cards about a week after he started at the Bridgestone factory. He denied giving him 131 clock cards. Mr Blakemore also denied that he had ever offered Mr Choong permanent employment by Bridgestone until the age of 65.
Mr Choong gave evidence that he spoke to Mr Rohen, a manager at Montica, about the offer of employment he said he had received from Mr Blakemore. Mr Choong said that Mr Rohen told him that he had to stay as an employee with Montica for six months before he could take up a position with Bridgestone. Mr Choong said that he reported this back to Mr Blakemore, and that Mr Blakemore responded by saying that Bridgestone would make Mr Choong’s position permanent after six months. In evidence, Mr Blakemore flatly denied ever making an offer of permanent employment to Mr Choong.
It is clear that, in fact, Mr Choong never became an employee of Bridgestone. Throughout his time at the Bridgestone factory, Mr Choong was an employee of Montica, and was paid by Montica.
Permanent Position
In evidence, Mr Choong said that he had a meeting with Trevor Datsopoulos and Ray Zielonka on 29 August 2007. Mr Choong said that, in the course of that meeting, in his presence, Mr Zielonka told Mr Datsopoulos that a permanent position for a boiler attendant would be coming up at Bridgestone, and that Mr Datsopoulos should apply for it. Mr Choong said that, about a week later, he raised the topic of the position which was about to become available with Mr Blakemore, and asked him why he, Mr Choong, had not been invited to apply. Mr Choong said that Mr Blakemore said to him “Well you can apply but a decision will be – Trevor Datsopoulos will still get the job”. Mr Choong said that he asked Mr Blakemore why that would be so, and Mr Blakemore said “Your age was the issue. When you reach age 65 you cannot work anymore”. Mr Choong said that he told Mr Blakemore that his certificate of competency could be extended beyond his 65^th birthday. Mr Choong said that Mr Blakemore said that if they gave Mr Choong the job, no sooner would he be made permanent than he would be retiring. Subsequently, a notice was placed on the staff noticeboard at Bridgestone, giving notification of a vacancy at Bridgestone for a boiler attendant. The position was permanent, at C10 level. Applications closed on 10 September 2007. By letter of 7 September 2007, Mr Choong applied for the position. In evidence, the following exchange occurred between Mr Clarke and Mr Choong:
Q. Given what was told to you by Mr Blakemore why did you apply for this job.
A. After having finished the meeting with him I decided I’ve got no choice but to apply for this job. If I don’t apply and be made permanent as a boiler attendant with this job my termination by Bridgestone will be – my services with Bridgestone will be terminated, will be imminent and I no available.
It is clear, then, that whatever happened between Mr Blakemore and Mr Choong during Mr Choong’s first few days at the factory, by September, Mr Choong understood that there was no arrangement to make him a permanent employee of Bridgestone after six months.
Mr Choong said in evidence that he was not interviewed for the position advertised on the notice board in September 2007. He said that Mr Datsopoulos told him in November 2007 that Mr Datsopoulos’ most recent pay was from Bridgestone, not Temp-Team (the labour hire company which had placed Mr Datsopoulos at Bridgestone). From this Mr Choong inferred, correctly, that Mr Datsopoulos had been appointed to the permanent position of boiler attendant at Bridgestone. Mr Choong estimates that Mr Datsopoulos would be about 40 years old. Mr Datsopoulos is a qualified boiler attendant, but he is not a fitter.
Mr Blakemore, in evidence, said that Mr Choong had asked him for a copy of the notice about the boiler attendant’s position a few days after it was put on the notice board. Mr Blakemore had a copy made for him and handed it to him. Mr Blakemore said that all of the boiler attendant positions at Bridgestone are classified as C10. Fitter positions are generally a higher classification, C5. Mr Harker, who was a fitter and a boiler attendant, was paid at the C8 level. Mr Choong was paid at the C10 level. His position was a boiler attendant’s position and his qualification as a fitter was not required for the position. Mr Blakemore said, in evidence, that Mr Datsopoulos was chosen for the permanent boiler attendant’s position over Mr Choong because there were performance issues with Mr Choong, and issues about his relationships with co-workers, but there were no such issues with Mr Datsopoulos. Mr Blakemore flatly denied that age played any part in deciding who should be awarded the position. He said that Bridgestone have a number of employees who are older than 65 years of age. Mr Blakemore said that Mr Choong had mentioned to him several times that he could get his certificate of competency as a boiler attendant extended beyond his 65^th birthday. Mr Blakemore flatly denied that the conversations which Mr Choong alleged occurred between them concerning Mr Choong’s age, which are set out above, ever took place. Mr Blakemore said that he interviewed Mr Choong and Mr Datsopoulos in relation to the position by means of an informal conversation with each of them whilst they were on duty. The fact that Mr Choong had a qualification as a fitter and Mr Datsopoulos had no such qualifications did not give Mr Choong the edge over Mr Datsopoulos (as Mr Choong clearly believed it should have) because the position Bridgestone sought to fill was purely that of a boiler attendant, which both Mr Choong and Mr Datsopoulos had the appropriate qualification to fill.
Mr Zielonka was asked, in cross examination, whether he ever asked Mr Datsopoulos to apply for the boiler attendant’s position in the presence of Mr Choong. The following exchange took place:
A. I would say no and I honestly can’t recall it. I can’t recall a meeting with Trevor, I didn’t note it. I could have had it but if I did have it there was nothing of significance to put in my diary and if it did occur then as I say, I think it’d be insensitive for me to bypass Sam and ask Trevor to apply and not Sam. So if it did occur – you know, and it could have – I don’t recall it and there was nothing of significance to put in my diary.
Several of the witnesses referred to Mr Choong as “Sam” in evidence.
In examination in chief, Mr Zielonka was asked about the issue of Mr Choong’s age:
Q.     Was his age ever an issue with you either at the time when Mr Datsopoulos was appointed or at the time his contract was not extended.
A.     The only issue for age was the fact that being more mature he’d had actually the opportunity to have more experience. A lot of the companies we deal with have like a lot of tradesmen that are in their late-50s and 60s and there’s actually the good skilled area so really, if anything, you can expect to have good value.
Q.     Did he complain in a telephone call of being discriminated against in relation – by age – at the time Mr Datsopoulos was appointed.
A.     No. On no occasion did he describe anything about – on those two occasions did he describe anything about age.
Q.     Did he in that telephone call make the assertion that Alan Blakemore, that [sic] an earlier stage said that he could remain employed on the contract at Bridgestone until his 65^th birthday.
A.     No. No, that – that didn’t come up at all at any time.
Performance Issues
Mr Blakemore gave evidence of some of the performance issues which led to the termination of Mr Choong’s time at Bridgestone. Mr Blakemore said that he attended two meetings near the end of August on separate days; one with Mr Choong and Mr Amos, and one with Mr Choong and Mr Stanojevic. Mr Zielonka and Mr Spence were present at the second meeting.
In the meeting at which Mr Amos was present, Mr Amos complained about an argument he had had with Mr Choong earlier in August in relation to a pump down in a well. According to Mr Amos, Mr Choong ordered him to go down the well and fix the problem whilst he, Mr Choong stayed with the boiler. Mr Amos tried to explain another method of fixing the problem, but Mr Choong was unreceptive. Mr Blakemore was inclined to believe that Mr Amos was correct in his belief as to the best way to overcome the problem, because Mr Amos had more experience with the boilers. Mr Amos complained of Mr Choong’s aggressive attitude during this incident. Mr Zielonka was questioned, in evidence, about this incident. It was of concern to him. He explained that a malfunction in the pump was made known by a low level alarm. This alarm alerts the boiler attendant to the need to turn off the pump and get water into a tank to avoid the boiler running out of steam. These things must be done urgently. Mr Zielonka was concerned that Mr Choong was adamant that someone else had to do those things while he stayed with the boiler, because the work practices sometimes dictated that Mr Choong would be alone, and, should the low level alarm sound then, Mr Zielonka could not be confident that Mr Choong would go down the well and attend to the pump and the tank. Mr Choong was asked at some length about this incident in cross examination, but his responses to questions as to what occurred, and what was said to him at the meeting in relation to the matter, did not directly address the issues.
The evidence was that in the meeting at which Mr Stanojevic was present, Mr Stanojevic complained of an incident which had occurred on 25 August 2007 involving the neutralisation of waste water. It was the practice to store waste water in a pit, so that its pH could be measured, and it could, if necessary, be neutralised before being discharged into the sewer. Mr Stanojevic complained that he found, following Mr Choong’s shift, that the waste water in the pit had an unusually high pH, so that it was necessary for him to add a very large quantity of acid to neutralise it. Mr Stanojevic observed white footprints and burn marks near the area where the containers of acid and caustic soda were kept. This, together with his questioning of Mr Choong, had led Mr Stanojevic to believe that Mr Choong had, during his shift, mistakenly added caustic soda to the waste water instead of acid. The acid was kept in black containers and the caustic soda in white containers, both of which were labelled. Mr Zielonka gave evidence about this incident, and the meeting in relation to it. Mr Zielonka said that 210 litres of acid had to be added to the waste water to bring it within the range acceptable to the SA Water for discharge to the sewer. Mr Choong told Mr Zielonka that he had put 80 litres of acid in the water during his shift, but it was Mr Zielonka’s view that it was likely that he had in fact added caustic soda. When this was put to Mr Choong by Mr Zielonka, Mr Choong disagreed, saying that caustic was milky, and the fluid he had added was clear. However, Mr Zielonka explained in evidence, the caustic soda used for the purpose at the factory is in a concentrated form and is, in fact, clear (until mixed with the water). Mr Zielonka’s primary concern about this incident was not so much the incident itself (although that was concerning), but Mr Choong’s inability to admit that he had made a mistake. Mr Zielonka had entertained the possibility that Mr Choong had been set up in this incident by a co-worker, but it did not seem to him on the basis of all of the evidence available to him that the incident was a set-up. He pointed out that it would not be possible to anticipate how many containers of liquid Mr Choong would put in the pit. He was also influenced by the fact that Mr Choong initially denied being in the area where the white footprints were found, but later admitted that he had been in that area. Mr Choong, in cross-examination, said that he thought that the waste water had become alkaline due to some leaking pipes. Mr Choong also said in cross examination that he thought that the footprints could have been Mr Stanojevic’s own, from an incident which had occurred a few days earlier. Mr Choong also offered an alternative explanation for the footprints which had to do with the bund, which he agreed he had stood upon, having been whitewashed.
Mr Zielonka related, in evidence, three further incidents which were of concern to him:
Q.…there was a problem with the boiler no.2 pilot light, which you discussed with Sam in your telephone conversation of 3 January.
A.yes.
Q.Can you tell us about that.
A.Yes, that one occurred when the information was relayed to me from the supervisor of the area, that the fact that it was on one night that the pilot light to the boiler hadn’t come on and so we would need to call in somebody the next day to check it out, because there are check devices in boilers, because if you have gas going in and no light, you know, what would happen with an oven, and if you’ve got a very big oven, then it will blow up. So that what happened the next day was working and so Sam was asked “Okay, what did you do to get it working?’ and he said “That’s my secret’”. I spoke to him some weeks after that event, you know, when it came about, but I didn’t record it in my diary but then when it did come to the – I suppose we could call it the exit interview, certainly on 3 January when we were discussing it, I brought that one up again and he was aware of it and – yeah, he was aware of it.
Q.Did you regard the incident as serious.
A.Yeah, for the reason I just gave, that if the – because if you have gas in there and to reset something and then not to say what he’d done, you know, that was for me very serious because if he’d used the method that was unsafe or, you know, sort of getting around it, then there’s potential to blow up the boiler. So I was very concerned about that one.
…
Q.What’s the problem with the boiler start-up. Can you explain what your concerns were in relation to that.
A.That one there was actually brought up on 30 August, that his method was potentially not correct; by hitting emergency stop, what can happen then is that there is steam still can escape out of the boiler, ‘cos the top is open like a kettle, and when it does that then you can get overheating or the boiler can have some collapse so that this – ‘cos then you’ve got to rely on then kick-starting the boiler up again. So it wasn’t the best approach to use to overcome a problem in the boiler.
Q.What degree of seriousness did you attach to that.
A.Let me think – using an emergency stop on a large piece of equipment, the boiler stands about two storeys high, its about 15 m wide and about ... 10 m wide, 15 m long, so it’s a very large piece of equipment, so emergency stopping something like that with the potential to blow up and not understanding why it had to be done, so I was very concerned and tried to find out why.
Q...there’s a high pressure hot water incident that’s not recorded in you diary that you discussed with Mr Choong in your 3 January conversation.
A.Yes.
Q.Can you tell the tribunal about that and your concerns.
A.Yes, why it wasn’t recorded in the diary was because I was personally involved with the event. I was called down to the boiler because Sam had refused to – to turn off a certain part of the plant for the pump. He said ‘No, we had to turn off some main controls’ and we said ‘No, you don’t have to, it’s only a peripheral part of the plant, we’ll just lose one part of the plant. You don’t have to turn off the main controls’ and he denied it. And then I tried to explain it to him and show him where the valves went, we walked down the line and said ‘See it goes here, you can isolate that, the rest of it is okay’, you know. I’m not an expert in the area but I’ve had to do a lot of the pipe work in there and so, you know, I knew of it. So we just tried to explain it to him to put his mind at ease which is in one way a good thing, the fact that he was taking a part of the safety, bad for us if he did turn off the whole plant. So we just tried to describe it to him and – but he was still adamant that no we needed to turn off more than that so in the end we got someone else to come along and just isolate that piece of plant. The difficulty being, of course, is that, you know, we tried to instruct it and he just said no, we were wrong and then – yes, and in this instance I was personally involved and I knew I was right because I’d been involved in this particular piece of plant before.

In cross examination, Mr Choong denied ever having said that the method of fixing the pilot light was “a secret”. Mr Choong also denied the incident regarding the issue of whether he could turn off part of the plant. When being questioned in relation to both of those allegations, Mr Choong insisted that he be shown the boiler house log book, and seemed to believe that nothing could be proved against him unless it had been recorded in the log book. As the boiler house log book is a record kept by the boiler attendants, this approach was somewhat self serving.
Termination
Mr Choong’s time at Bridgestone was terminated on 3 January 2008. The factory shut down for about two weeks over Christmas. Mr Choong went on leave on 22 December 2007, on the understanding that he would return to resume his normal duties on 7 January 2008. However, on 3 January 2008, Mr Choong telephoned Mr Blakemore and, in the course of that conversation, Mr Blakemore told Mr Choong that he was not required to return to the factory, and that his services had been terminated. Mr Choong telephoned Mr Zielonka that afternoon. From that conversation, Mr Choong said that he understood that his services were terminated because of complaints by other workers about his performance. Mr Choong said that Mr Zielonka raised both the incident concerning the caustic soda and the incident regarding the pump by way of explanation for the termination of Mr Choong’s services. It was common ground that there was no mention of Mr Choong’s age by Mr Blakemore, Mr Zielonka or Mr Choong in the course of the conversations on 3 January 2008.
Mr Blakemore explained in evidence that he and Mr Zielonka had had discussions after 22 December 2007, in the course of which they devised a way of covering the boiler house staffing without Mr Choong. They did this because of the incidents related above, in particular the caustic soda incident and the incident involving the pump.
Mr Choong claims that he was discriminated against by Bridgestone on the basis of his age.
Provisions of the Equal Opportunity Act 1984
The following provisions of the Equal Opportunity Act 1984 are relevant:
S 85A - Criteria for establishing discrimination on the ground of age
For the purposes of this Act, a person discriminates on the ground of age –
(a)if he or she treats another person unfavourably because of the other’s age; or
(b)if he or she treats another person unfavourably because the other does not comply, or is not able to comply, with a particular requirement and –
(i)the nature of the requirement is such that a substantially higher proportion of persons of a different age or age group complies, or is able to comply, with the requirement than those of the other’s age or age group; and
(ii)the requirement is not reasonable in the circumstances of the case; or
(c)if he or she treats another person unfavourably on the basis of a characteristic that appertains generally to persons of the other’s age or age group, or on the basis of a presumed characteristic that is generally imputed to persons of that age or age group.
S 85B – Discrimination against applicants and employees
(1)    It is unlawful for an employer to discriminate against a person on the ground of age –
(a)in determining, or in the course of determining, who should be offered employment; or
(b)in the terms or conditions on which employment is offered.
(2)    It is unlawful for an employer to discriminate against an employee on the ground of age-
(a)in the terms or conditions of employment; or
(b)by denying or limiting access to opportunities for promotion, transfer or training, or to any other benefits connected with employment; or
(c)by dismissing the employee; or
(d)by subjecting the employee to any other detriment.
S 85D - Discrimination against contract workers
(1)    This section applies to a principal for whom work is done by contract workers in pursuance of a contract between the principal and the employer of those contract workers.
(2)    It is unlawful for a principal to enter into any contract or arrangement with an employer of contract workers under which the employer is to discriminate against a person on the ground of age.
(3)    It is unlawful for the principal to discriminate against a contract worker on the ground of age –
(a)in the terms or conditions on which the contract worker is allowed to work; or
(b)by not allowing the contract worker to work; or
(c)by denying or limiting access to any benefit connected with employment; or
(d)by subjecting the contract worker to any other detriment.
In order to succeed in his claim, Mr Choong needed to establish, on the balance of probabilities, that Bridgestone (either as employer or as principal) discriminated against Mr Choong (either as a worker or as a contract worker) on the ground of age in the manner outlined in s 85B or s 85D(2) or (3).
The Permanent Position
The argument pursued most vigorously on Mr Choong’s behalf was that Bridgestone had, in November 2007, awarded a permanent position as a boiler attendant to Mr Datsopoulos, in preference to Mr Choong on the basis of Mr Choong’s age. This argument relied solely on the evidence of Mr Choong, set out above, that Mr Blakemore had said to him, in the context of discussing the position before it was advertised on the notice board,
·“Your age was the issue. When you reach age 65 you cannot work anymore” and
·that if they gave Mr Choong the job, no sooner would he be made permanent that he would be retiring.
Mr Blakemore flatly denied making those statements. Mr Blakemore said that he was aware that Mr Choong’s certificate of competency as a boiler attendant could be extended past his 65^th birthday. Mr Blakemore said that he made the decision that Bridgestone would employ Mr Datsopoulos, and not Mr Choong, in the boiler attendant’s position, and that Mr Choong’s age played no part in that decision. Mr Blakemore said that Mr Datsopoulos was chosen over Mr Choong because there were issues concerning Mr Choong’s performance and relationships with co-workers, and there were no such issues in relation to Mr Datsopoulos.
Where Mr Choong’s evidence is at variance with Mr Blakemore’s, we believe Mr Blakemore’s account. Mr Blakemore was clearly the more impressive witness of the two. We also prefer Mr Zielonka’s evidence to Mr Choong’s, on the same basis. In evidence, Mr Zielonka indicated that Mr Choong’s age was never viewed by Mr Zielonka as an impediment. Both Mr Blakemore and Mr Zielonka made the point that Mr Choong’s complaint that he had not been awarded the position on account of his age was not raised by him, to their knowledge, until some weeks after his termination, which was several months after Mr Datsopoulos was awarded the position.
We find that the decision not to award Mr Choong the boiler attendant’s position was made on the basis of performance issues and issues relating to Mr Choong’s relationship with his co-workers. We find that Mr Choong’s age was not a factor which played a part in that decision.
Mr Choong has not established on the balance of probabilities that the decision not to award the boiler attendant’s position to him in November 2007 was made on the ground of age. His complaint on this basis will be dismissed.
Mr Choong’s termination
It was implicit in Mr Choong’s case that his age was a relevant factor in the termination of the contract pursuant to which he worked at the factory. As set out in detail above, Mr Blakemore said in evidence that Mr Choong’s services were dispensed with by Bridgestone on account of performance and attitude issues. The performance issues are set out in detail above. We accept the evidence of Mr Blakemore and Mr Zielonka that, by the time of the 2007 Christmas shut down, their concerns about Mr Choong’s performance, and their perception of his attitude, were the only factors which motivated them to terminate Mr Choong’s services. We find that his age played no part in that decision.
Mr Choong’s complaint will be dismissed.