Heather v Hikvision Australia Pty Ltd

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.