Heather v Hikvision Australia Pty Ltd

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FEDERAL CIRCUIT COURT OF AUSTRALIA

Heather v Hikvision Australia Pty Ltd [2021] FCCA 196  

File number(s): MLG 3222 of 2019
Judgment of: JUDGE RILEY
Date of judgment: 5 February 2021
Catchwords: INDUSTRIAL LAW – Fair Work – adverse action – prospective employee – alleged age discrimination
Legislation: Fair Work Act 2009 (Cth), ss 340, 342, 351, 360, 361
Cases cited:

Board of Bendigo Regional Institute of Technical and Further Education v Barclay (2012) 248 CLR 500; (2012) 290 ALR 647; (2012) 86 ALRJ 1044; (2012) 220 IR 445; [2012] HCA 32

Construction, Forestry, Mining and Energy Union v BHP Coal Pty Ltd (2014) 253 CLR 243; (2014) 314 ALR 1; (2014) 88 ALJR 980; (2014) 245 IR; [2014] HCA 41

Fair Work Ombudsman v AJR Nominees Pty Ltd [2013] FCA 467

Pezzimenti v Rotary International (2019) 290 IR 219; [2019] FCCA 1854

Western Union and Business Solutions (Australia) v Robinson (2019) 272 FCR 547; (2019) 290 IR 414; [2019] FCAFC 181

Number of paragraphs: 104
Date of last submissions: 22 December 2020
Date of hearing: 15 and 22 December 2020
Place: Melbourne
Counsel for the Applicant: Geoff Lake
Solicitor for the Applicant: McDonald Murholme
Counsel for the Respondent: Julie Zhou
Solicitor for the Respondent: Nicole Dunn Lawyers Pty Ltd

ORDERS

MLG 3222 of 2019
BETWEEN:

LANCE HEATHER

Applicant
AND:

HIKVISION AUSTRALIA PTY LTD
(ACN 164 676 671)

Respondent

ORDER MADE BY:

JUDGE RILEY

DATE OF ORDER:

5 FEBRUARY 2021

THE COURT ORDERS THAT:

1.The application filed on 25 September 2019 be dismissed.

REASONS FOR JUDGMENT

INTRODUCTION

  1. This is an adverse action claim brought under the Fair Work Act 2009 ("the Act"). It was common ground that:

    (a)the applicant was offered employment with the respondent as a business development manager ("BDM");

    (b)afterwards, upon request, the applicant sent the respondent a copy of his passport, which revealed that the applicant was 71 years old; and

    (c)the respondent then rescinded the offer of employment.

  2. In these circumstances, the applicant argued that the respondent had taken adverse action against him by refusing to employ him by reason of, or for reasons including, his age.

  3. The respondent said that it did not refuse to employ the applicant because of his age, which was unknown to the decision-maker, but because its sales data required a change of business strategy. The change of business strategy made it preferable to have an internal candidate as the BDM, who could focus on existing clients who bought products at the entry and mid-level, rather than attempting to win new clients who might buy products at a higher level.

    APPLICANT’S SUMMARY OF THE FACTS

  4. In his written submissions filed on 4 December 2020, the applicant provided the following summary of the relevant facts from his point of view:

    1.On 17 June 2019 the Applicant applied for the position of Business Development Manager (BDM) with the Respondent.1

    1 Statement of Claim [3]; Affidavit of Lance Heather [6].

    2.On 19 June 2019 Wen Shan (

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Details
Case
[2021] FCCA 196
Decision Date

CaseChat Overview and Summary

In the Federal Court of Australia, Judge Riley considered an application by Lance Heather against Hikvision Australia Pty Ltd. Mr. Heather alleged that Hikvision Australia Pty Ltd engaged in adverse action by refusing to employ him as a Business Development Manager due to his age, which he claimed constituted unlawful age discrimination. Hikvision Australia Pty Ltd contended that the decision not to proceed with Mr. Heather's employment was based on a strategic shift in its business model, not his age.

The central legal issue before the Court was whether the respondent's decision to withdraw the offer of employment to the applicant was motivated by his age, thereby contravening the provisions of the Fair Work Act 2009 (Cth) concerning adverse action. This required the Court to determine the true reason for the refusal to employ Mr. Heather, considering the evidence presented by both parties regarding the recruitment process, the applicant's disclosure of his age, and the respondent's stated reasons for its decision.

Judge Riley accepted the respondent's evidence that a change in business strategy occurred around 3 July 2019, leading to a preference for an internal candidate to focus on existing clients rather than seeking new, higher-level clients. This strategic shift was supported by the fact that the respondent ultimately employed three Business Development Managers focused on entry and mid-level clients, with no such role dedicated to the high-level market. While acknowledging the respondent provided limited documentation, the Court found the oral evidence, particularly from Mr. Liu, persuasive. The Court also considered the broader geopolitical context, including trade tensions between Australia and China, which could plausibly have influenced a Chinese company's assessment of its prospects in the Australian market, making the strategic change a credible reason for withdrawing the offer.

The application filed by the applicant was dismissed.

Orders

Orders of the court

THE COURT ORDERS THAT:

1. The application filed on 25 September 2019 be dismissed.

Background

Background to the litigation

The respondent said that it did not refuse to employ the applicant because of his age, which was unknown to the decision-maker, but because its sales data required a change of business strategy. The change of business strategy made it preferable to have an internal candidate as the BDM, who could focus on existing clients who bought products at the entry and mid-level, rather than attempting to win new clients who might buy products at a higher level.APPLICANT’S SUMMARY OF THE FACTS In his written submissions filed on 4 December 2020, the applicant provided the following summary of the relevant facts from his point of view:1.On 17 June 2019 the Applicant applied for the position of Business Development Manager (BDM) with the Respondent.11 Statement of Claim [3]; Affidavit of Lance Heather [6].2.On 19 June 2019 Wen Shan (Ms Shan) – Recruiter at Bayside Group, telephoned the Applicant and invited him to attend an interview on 20 June 2019.22 Statement of Claim [4]; Affidavit of Lance Heather [8].3.On 20 June 2019 the Applicant attended the job interview with Ms Shan and progressed to the next stage of the recruitment process.33 Statement of Claim [5]; Affidavit of Lance Heather [9]-[10].4.On 21 June 2019 the Applicant attended a job interview with Rina Wan (Ms Wan) – Human Resources Manager, Oceania for the Respondent.4 Later that day, Ms Shan invited the Applicant to a third and final interview with Evan Liu (Mr Liu) – Manager Director, which took place on 25 June 2019.54 Statement of Claim [6]; Affidavit of Lance Heather [12].5 Statement of Claim [7]-[8]; Affidavit of Lance Heather [13] and [15].5.On [Friday] 28 June 2019 Ms Shan telephoned the Applicant and advised him, inter alia, that:(a)the Applicant was the successful candidate from five other applicants and would be offered the role of Business Development Manager;(b)the Applicant’s expected start date was 15 July 2019; and(c)the Applicant should expect an official email of offer from the Respondent on either 1 or 2 July 2019.66 Statement of Claim [9]; Affidavit of Lance Heather [17].6.On [Tuesday] 2 July 2019 Ms Wan sent an email to the Applicant in which she offered the Applicant employment with the Respondent (Offer of Employment).77 Statement of Claim [10]; Affidavit of Lance Heather [19].7.The terms of the Offer of Employment included, inter alia, that:(a)the Offer of Employment would be open for acceptance until 4 July 2019;(b)the employment would be permanent full-time in nature;(c)the Applicant would be remunerated at a base rate of $125,000 per annum plus superannuation and a car allowance of $18,000; and(d)the Applicant would commence work on 15 July 2019.88 Statement of Claim [11]; Affidavit of Lance Heather [19].8.Relevantly, and contrary to the Defence at paragraph 10, the Offer of Employment was not made conditional in any way, including by making it subject to:(a) the Applicant providing further information as requested;(b) satisfactory reference checks being completed; or(c) the drawing up and execution of a formal contract of employment.9.On 2 July 2019 the Applicant sent an email to Ms Wan in which he accepted the Offer of Employment and attached copies of his passport and an Employee Information form, which disclosed the Applicant’s date of birth and age, being 71 years at the time (the Age Disclosure).910.On 3 July 2019 Ms Wan sent an email to the Applicant in which she confirmed receipt of the Age Disclosure.10 Later that day, she telephoned the Applicant and congratulated him on securing the role with the Respondent. She further advised him that he would be required to attend a company conference in Sydney the following week.1111.On [Friday] 5 July 2019 Ms Shan and the Applicant had a telephone discussion during which, inter alia:(a)Ms Shan told the Applicant that the Respondent had ‘rescinded’ the Offer of Employment (the Refusal to Employ); and(b)the Applicant queried whether the Refusal to Employ was related to his age and Ms Shan refused to respond.1212.On 5 July 2019 Ms Wan sent an email to the Applicant titled “About Rescinding the Offer Letter”, which confirmed the Refusal to Employ.139 Statement of Claim [12]; Affidavit of Lance Heather [20]-[21].10 Statement of Claim [13]; Affidavit of Lance Heather [22].11 Statement of Claim [14]; Affidavit of Lance Heather [23].12 Statement of Claim [15]; Affidavit of Lance Heather [24].13 Statement of Claim [16]; Affidavit of Lance Heather [25].

Evidence

Evidence Before The Court

Full text does not contain this section.

Decision

Reasons for decision

Full text does not contain this section.

Ratio Decidendi

Legal Principle Established

The applicant submitted in reply on this point that the facts and circumstances of the case as a whole cast doubt on the flimsy and self-serving claims about the three BDMs being focussed on entry and mid-level clients. The applicant accepted that the respondent does now have three BDMs in the Melbourne office. The applicant conceded that it was not put to Mr Liu or Ms Wan that the three BDMs, or any of them, are not working on the entry and mid-level markets. However, the applicant said that there was no evidence in support of that beyond Mr Liu and Ms Wan’s say-so. CONSIDERATION This seems to me to be a very finely balanced case. I am very conscious of the reverse onus, and that the respondent has provided little in the form of documentation or witnesses beyond Mr Liu and Ms Wan to support their version of events. Ms Wan’s affidavit evidence was wrong when she said that the offer to the applicant was conditional on reference checks. However, based on the affidavit evidence and more importantly on Mr Liu’s oral evidence in cross-examination, I accept the respondent’s evidence that it now has three BDMs working in the Melbourne office with entry and mid-level clients and no BDM working with high-level clients. This is a critical fact. It means that the respondent did change its business strategy, in or around 3 July 2019. The paucity of documents relating to the change of business strategy is more than offset by the reality that the respondent, to this day, does not have a BDM for the high-level market. This finding answers many of the applicant’s 10+ points. However, for completeness, I will deal with them in order. Firstly, even if, in the abstract, it was implausible that the respondent would walk away from a prolonged recruitment process because of a change of business strategy, the fact is that the respondent did change its business strategy. The fact that there was in reality a change of business strategy makes it plausible that the respondent walked away from the prolonged recruitment process for that reason. Moreover, the fact that the respondent did not employ the second ranked candidate in the recruitment process demonstrates that the respondent did walk away from that recruitment process. Secondly, it was not entirely true that nothing changed between 2 and 4 July 2019. Mr Liu referred in his oral evidence to rumours about worsening trade tensions with China. Given what is now publicly known about Australia’s trade tensions with China, it is not implausible that Mr Liu would have heard something from his colleagues in head office in China in July 2019 about a forthcoming escalation of those tensions. It is a matter of public record that Australia at that time had already banned Huawei from our 5G network and was encouraging other five-eyes nations to do the same, and that President Trump was engaged in a trade war with China. In this environment, it is plausible that a Chinese company, such as the respondent, would have formed the view that it had little chance of selling video surveillance equipment and facial recognition technology to Australian governments and large corporations.