Smith v Sedgwick Callaghan Accountants Pty Ltd
[2018] FCCA 3204
•7 November 2018
FEDERAL CIRCUIT COURT OF AUSTRALIA
| SMITH v SEDGWICK CALLAGHAN ACCOUNTANTS PTY LTD | [2018] FCCA 3204 |
| Catchwords: INDUSTRIAL LAW – Commonwealth – Workplace rights and responsibilities – General protections – Other protections – adverse action – alleged age discrimination in dismissal |
| Legislation: Fair Work Act 2009, ss.342, 351, 361, 385 |
| Cases cited: Board of Bendigo Regional Institute of Technical and Further Education v Barclay [No 1] (2012) 248 CLR 500 |
| Applicant: | GABRIELLE MARY SMITH |
| Respondent: | SEDGWICK CALLAGHAN ACCOUNTANTS PTY LTD |
| File Number: | BRG 534 of 2015 |
| Judgment of: | Judge Jarrett |
| Hearing date: | 19 January 2016 |
| Date of Last Submission: | 15 March 2016 |
| Delivered at: | Brisbane |
| Delivered on: | 7 November 2018 |
REPRESENTATION
| The Applicant appeared in person |
| Counsel for the Respondent: | Mr Johnson |
| Solicitors for the Respondent: | Murdoch Lawyers |
ORDERS
The application filed on 16 June, 2015 is dismissed.
| FEDERAL CIRCUIT COURT OF AUSTRALIA AT BRISBANE |
BRG 534 of 2015
| GABRIELLE MARY SMITH |
Applicant
And
| SEDGWICK CALLAGHAN ACCOUNTANTS PTY LTD |
Respondent
REASONS FOR JUDGMENT
From 5 January, 2015 to 22 April, 2015 Ms Smith was employed by the respondent as a Senior Accountant. This is an application by Ms Smith for orders for reinstatement, compensation for hurt, humiliation and damage to her professional reputation and the imposition of pecuniary penalties upon the respondent. She alleges that in contravention of s.351(1) of the Fair Work Act 2009 (Cth) the respondent took adverse action against her by terminating her employment because of her age.
The issue to be determined is whether the respondent terminated Ms Smith’s employment for a reason other than her age.
For the reasons that follow, I am satisfied that the respondent terminated Ms Smith’s employment for a reason other than her age, namely because of her poor performance.
Accordingly, her application must be dismissed.
Background
The applicant is currently 63 years of age and a career accountant.
On 18 November, 2014, she attended at the respondent’s office in Toowoomba for the purposes of a job interview. She was interviewed by May McGarva and Angie Gordon, two directors of the respondent company.
She attended a second interview on 27 November, 2014 and on this occasion she was interviewed by Mark Callaghan and John Sedgwick, two other directors of the respondent company. Ms Smith claims that during that interview the directors asked her questions relating to her age. In particular, she says that Mr Sedgwick asked her how long she intended to continue to work. Ms Smith says that she replied that she intended to work until she reached pension age and “possibly beyond that”. She says that Mr Callaghan asked her how long it was before she reached “pension age” and she told him that it was about seven years. She further claims that Mr Sedgwick said that he had “one of those” on his team and that “they slowed down to the point where they couldn’t do the job anymore.”
Despite this, in December, 2015 the applicant received and accepted an offer of employment from the respondent and commenced working on 5 January, 2016.
Ms Smith continued to work for the respondent until 22 April, 2015 when her employment was terminated. Her evidence is that she was unaware of any issue with her work and that she had completed about 10 “large jobs” and “several smaller ones” during the period of her employment.
On a day-to-day basis, Ms Smith’s work was subject to an initial review by her manager, Jodie Weiting. Her work would be returned to her with Ms Weiting’s “review points” and any requirements that Ms Weiting had of Ms Smith in relation to the particular job that was under review. Upon completion of the review points and any additional requirements from Ms Weiting, the job would pass to Mr Callaghan for his review. If he had changes, which according to Ms Smith’s written evidence was usual, the work would come back to her via Ms Weiting for completion.
On 22 April, 2015 Ms Smith was summoned to the respondent’s boardroom. When she attended, she found that Mr Callaghan, Ms Weiting and Ms Lynda Steffens were there. She was asked to sit down and she was handed a letter of termination, expressed to be of immediate effect. Ms Smith says that she had no indication that her employment was at risk and that she was facing the termination of her employment. She says that she was not given any counselling about her work performance or given any type of warning, either verbal or written. Nor was she given advance notice of the meeting. She asked for the opportunity to have a support person with her, but that was denied.
Ms Smith says that she asked why the decision to terminate her employment had been made. She says that Mr Callaghan said that no reason needed to be given because she was still within her probationary period. Ms Smith disputed that, but still no reason was given. She also alleges that Ms Weiting said that her performance had been unsatisfactory and referred to some issues early in Ms Smith’s employment about work papers for certain work that she had completed. He also said that one of the directors had overheard her talking to a client on the telephone and did not think that she was “confident enough”.
Ms Smith asked to keep her employment and expressed a willingness to overcome whatever issues her employer had with her performance, but her requests were rebuffed. Ms Smith left the workplace and has not returned.
Following termination, as required by her employment contract, the respondent paid Ms Smith one week’s pay in lieu of notice, as well as her leave and other statutory entitlements. It is uncontroversial that at Ms Smith’s request, based on a claim of alleged financial hardship made by her and despite the fact she was not entitled to it, the respondent also paid Ms Smith an additional week’s wages, on compassionate grounds.
Consideration
The legislative framework
Section 351 of the Fair Work Act prohibits an employer from taking adverse action against an employee by reason of the employee’s age.
Ms Smith bears the onus of establishing that adverse action has been taken against her and once she has discharged that onus, the respondent bears the onus of establishing that it did not take adverse action because of a prohibited reason. Adverse action is defined in s.342 of the Fair Work Act. Relevantly, it will have occurred where an employer dismisses an employee: s.342(1) item 1(a) of the Act.
Section 361 of the Act provides a presumption that:
(1) If:
(a) in an application in relation to a contravention of this Part, it is alleged that a person took, or is taking, action for a particular reason or with a particular intent; and
(b) taking that action for that reason or with that intent would constitute a contravention of this Part;
it is presumed that the action was, or is being, taken for that reason or with that intent, unless the person proves otherwise.
The way in which a respondent may discharge its onus has been the subject of several High Court decisions, most significantly Board of Bendigo Regional Institute of Technical and Further Education v Barclay [No 1] (2012) 248 CLR 500, in which French CJ and Crennan J offered the following overview at [44]-[45]:
…The imposition of the statutory presumption in s 361, and the correlative onus on employers, naturally and ordinarily mean that direct evidence of a decision-maker as to state of mind, intent or purpose will bear upon the question of why adverse action was taken, although the central question remains “why was the adverse action taken?”.
This question is one of fact, which must be answered in the light of all the facts established in the proceeding…Direct evidence of the reason why a decision-maker took adverse action, which may include positive evidence that the action was not taken for a prohibited reason, may be unreliable because of other contradictory evidence given by the decision-maker or because other objective facts are proven which contradict the decision-maker’s evidence. However, direct testimony from the decision-maker which is accepted as reliable is capable of discharging the burden upon an employer even though an employee may be an officer or member of an industrial association and engage in industrial activity. (footnotes omitted)
Accordingly, the questions for this Court are:
a)is the evidence of the decision maker reliable?
b)if not, is the Court in any event satisfied that the reasons for the respondent’s decision to terminate Ms Smith’s employment did not include, as a substantial and operative factor, her age?
If the answer to either question is “yes”, then the application will fail.
As the respondent submits, having regard to the authorities, the central issue for determination is whether Ms Smith’s age was a substantial or operative reason or immediate reason for the decision to terminate the applicant’s employment. Unless it is established that Ms Smith’s age was a substantial or operative reason or immediate reason for the decision to terminate her employment then there will be no breach of s.351(1) of the Act.
The respondent disputes the alleged contravention of s.351 of the Act and:
a)specifically denies it dismissed Ms Smith because of her age; and
b)says that the reason it terminated Ms Smith’s employment was because her performance was unsatisfactory and was therefore unsuitable for the role of senior accountant.
The evidence
Evidence in chief was given by affidavit. Each of the witnesses was cross-examined. Save where I have set out below, the cross-examination of the various witnesses did not disturb, in any significant way, the positions taken by the witnesses in their affidavits.
The respondent argues that Ms Smith has not raised a sufficient prima facie case to engage s.361(1) of the Act. I tend to agree. Whilst there is no dispute that the respondent took adverse action against Ms Smith by terminating her employment, there is no direct evidence that the reason for Ms Smith’s dismissal was her age. She identifies none. She does not allege that she was given any reason for her dismissal. Her case is based on her supposition that she was dismissed because of her age.
There are three uncontroversial matters that emerge from the evidence – Ms Smith’s age, the fact that her employment was terminated and the fact that the respondent gave her no reason for the termination. Ms Smith argues that these three matters, perhaps coupled with Mr Sedgwick’s curiosity about her age when he interviewed her (as to which I have set out the evidence below) give rise to a prima facie case of age discrimination against the respondent. However in my view those matters on their own or in combination, are insufficient to raise a prima facie case necessary to engage the operation of s.361(1) of the Act.
In any event, by reason of the findings that I have made below, it is unnecessary to finally determine this point.
At the outset I record that the very fact that the respondent employed Ms Smith and she commenced work in January, 2015 is against her proposition that the respondent and its directors discriminated against her because of her age. It is difficult to accept that having made a decision to employ her in late December, 2014 or early January, 2015 they thought her employment ought to be terminated because of her age (something about which they knew when they employed her) in April, 2015.
All of the people who had a part to play in determining to terminate Ms Smith’s employment were called to give evidence by the respondent. Ms Smith cross-examined each of them. She did not, however, challenge them with the assertion that her employment was terminated because of her age.
The evidence of each of the four directors was that Ms Smith’s age was not even discussed or mentioned at all, not raised as an issue, and was not a factor in the decision, considered and made during the directors’ meeting on 16 April, 2014. As counsel for the respondent points out, their evidence to this effect remains unchallenged and not contradicted.
Mr Mark Callaghan gave evidence. He is a certified practising accountant and a director of the respondent. His evidence was that the respondent carries on business as an accounting practice in Toowoomba. The respondent has four directors, John Sedgwick, Angie Gordon, and May McGarva. Each of the four directors heads up a team of approximately eight staff comprising a senior client manager, various senior accountants, intermediate accountants, graduate accountants and trainee accountants. Each director has responsibility for the day-to-day operation and supervision of their respective teams. The respondent also has administration staff that reports to its business manager, Linda Steffens.
According to Mr Callaghan’s evidence, each of the four directors have an equal vote in all matters concerning the respondent’s business including decisions in relation to the employment of staff. As at March 2015, the respondent employed 38 staff.
Mr Callaghan’s evidence confirmed that Ms Smith was first interviewed by Ms McGarva and Ms Gordon. Ms McGarva reported to Mr Callaghan that Ms Smith had previously worked for a younger manager and she had seemed uncomfortable with that. She also told Mr Callaghan that she had formed the view that Ms Smith had previously worked quite autonomously and so a change whereby she would work in the team-based environment operated by the respondent would be different for her. Ms McGarva suggested to Mr Callaghan that he should interview Ms Smith because she would be working on his team. Mr Callaghan agreed to interview Ms Smith.
Mr Callaghan, and another director Mr Sedgwick interviewed Ms Smith on 27 November, 2014 Mr Callaghan says that:
Given May McGarva’s identified and expressed concern, we advised the Applicant that she would be reporting to a younger (but experienced) Manager. The Applicant acknowledged this and confirmed that she would not have any problem with this. We explained our team structures and the Applicant indicated that the arrangement would suit her.
Mr Callaghan’s evidence was that he had some concerns with Ms Smith’s ability to fulfil the requirements of the role for which she was to be employed. Specifically, he had concerns about whether she would be able to meet the required standard of service, based upon her quiet demeanour and her history of changing employers. Ultimately, the other directors left the decision about Ms Smith’s employment to Mr Callaghan as she would be working on his team. Despite misgivings about her interpersonal skills and client management skills, Mr Callaghan offered Ms Smith the position.
A written employment agreement was entered into which was constituted by Ms Smith signing a letter of offer of employment on 12 December, 2014. Ms Smith’s employment was subject to a probationary period of three months and her employment could be terminated upon one weeks’ notice where her service period was less than one year. The agreement provided for a commencement date of 5 January, 2015. Accordingly, her probationary period ended on 5 April, 2015.
Ms Smith commenced her employment with the respondent on 5 January, 2015. She commenced work as a senior accountant and she reported to Ms Jodie Wieting. She was given a staff induction by Ms Linda Steffens.
Mr Callaghan gave evidence about the way in which work was undertaken within the respondents business. An employee is responsible for all facets of a client’s affairs. That included preparation of financial statements and corresponding tax returns for all entities as well as the individuals within those entities. On completion, that work was reviewed or checked by their senior client manager. For Ms Smith’s purposes that review was done by Jodie Wieting. Once Ms Wieting was satisfied with the work, it was reviewed by Mr Callaghan (for accountants within his team). Mr Callaghan says that he had an expectation that the work was technically correct (that is to say it was in compliance with the Tax Act) and was prepared in terms of a written tax plan which had previously been prepared for and agreed to by the client. Mr Callaghan saw his review to ensure compliance with the proposed tax plan strategy, and consideration of such other strategic matters as might be relevant.
Mr Callaghan gave evidence of a number of pieces of work that he reviewed that had been prepared by Ms Smith. They were:
a)job for client MAYGR, six Fairbury, 2015 – changes were required for technical errors;
b)job for client MENDJ on 10 February, 2015 – changes were required for technical errors;
c)job for client JACCD, 25 for B, 2015 – changes were required for technical errors;
d)job for client HODBR are on 3 March 2015 – changes required for technical errors;
e)job for client are REESG on 29 March, 2015 – changes were required for technical errors and work did not follow the client’s tax plan.
Ms Smith cross-examined Mr Callaghan about each of the matters identified by him in his affidavit as errors in the above listed jobs. At no time did she suggest that the errors that Mr Callaghan identified, had not been made or did not exist.
Mr Callaghan’s evidence was that the type of error that he noticed in each of the above jobs were errors that were not acceptable for a senior accountant and demonstrated non-compliance with accounting procedures. Ms Smith cross-examined Mr Callaghan about this. She put to him that in each of the above cases her work had been reviewed by Ms Wieting and perhaps another and that the errors that Mr Callaghan had identified had not been identified by those people. When he was asked whether he was concerned that they had not picked up those errors, his response was that he was “probably more concerned that those errors existed when the work was prepared by a senior accountant”.
Ms Smith’s cross-examination of Mr Callaghan about these matters demonstrated a curious circumstance that Ms Smith’s work was being checked by Ms Wieting and then being passed on to Ms Callaghan when Ms Smith had attended to the matters identified for attention by Ms Wieting. That errors still persisted when the work got to Mr Callaghan suggested that Ms Wieting was not doing her job correctly or that her performance was under par. Ms Smith’s concern was that it was being suggested that her performance was unsatisfactory in circumstances where Ms Wieting was not identifying the errors identified by Mr Callaghan and yet her performance was not seen as unsatisfactory as well. There is some merit in this argument.
Mr Callaghan described that staff have key performance indicators or targets that they aspire to and they receive a report each month to advise staff of their achievements. The reports are prepared after the firm’s billing is finalised each month.
Mr Callaghan’s evidence was that he and Ms Wieting met with Ms Smith on 25 February, 2015 to provide her with feedback on her performance up to that time and to discuss how she was fulfilling her role. However, because Ms Smith had not completed any jobs by the time of the review, there was no reliable data as to her key performance indicators. Mr Callaghan was aware, however, from Ms Wieting that the feedback received from other senior staff was that Ms Smith was difficult to train. She did not follow instructions from Ms Wieting to complete work with the “buddy system” that the respondent employed, but instead worked autonomously without following the respondent’s mandated procedures. Mr Callaghan’s evidence was that at the meeting he discussed these matters with Ms Smith and pointed out that there was a requirement to follow the trainer’s instructions and to ask questions to clarify points. Mr Callaghan explained to Ms Smith that procedures were to be followed to ensure consistency, efficiency and quality assurance. There was also discussion about Ms Smith’s late arrival for work on occasions which each she suggested was due to mechanical problems with her car.
Mr Callaghan gave evidence that he was also made aware of an incident that occurred in late March, 2015. Ms Wieting and Ms McGarva each told Mr Callaghan about the incident whereby Ms Smith received a phone call from one of the respondent’s clients seeking assistance to “backup” their MYOB file onto a USB. Mr Callaghan was advised by both Ms Wieting and Ms McGarva that the applicant was rude and abrupt with the client and had failed to provide any assistance. This matter concerned Mr Callaghan. He had received other reports from members of his team and other staff of the respondent that the applicant was either unable to fulfil client requests or was abrupt and unhelpful to the clients.
Mr Callaghan’s impression was that Ms Smith was unwilling to accept or follow the respondent’s procedures and demonstrated a lack of respect for her manager by not following very specific instructions.
Mr Callaghan’s evidence was that in late March, 2015 he was considering whether the respondent should continue with the applicant’s employment beyond her probation period. He did not discuss his concerns with anybody else because he did not want to influence their opinions. By that time he had received the performance reports for Ms Smith for the period commencing from her employment to 28 February, 2015. He noted that Ms Smith had “write-offs” of 53.9% which was inferior to the performance of another accountant who had commenced work at about the same time and in the same role as Ms Smith whose “write-offs” were only 27.3%. Mr Callaghan thought that Ms Smith’s performance more closely resembled that of a graduate accountant. He thought her performance fell well short of the standard expected of a senior accountant and showed that she was not in fact efficient in performing her role. He thought that based upon the figures that he reviewed, her performance was poor due to a number of factors but primarily because she did not follow procedures or use correct workpapers. Further, she did not follow the instructions of her trainers Ms Wieting and Mr Callaghan.
Ms Smith challenged Mr Callaghan on this evidence and suggested to him that “it really wasn’t on your agenda to not continue me after my probationary period at that point in time”. Mr Callaghan denied that proposition and said that his evidence was true. I accept his evidence about that matter. Ms Smith was curious as to why Mr Callaghan did not have a meeting with her prior to 2 April, 2016 which she saw as the end of her probationary period and the last point in time at which the respondent could make a decision to terminate her employment for probationary reasons. Mr Callaghan’s response was twofold. First, and he was about to head away on leave and he was under pressure to have work completed which left him with little time to meet with Ms Smith. Second, any decision about Ms Smith’s employment needed to be made collectively by the directors and the first time that they were able to get together following the completion of Ms Smith’s probationary period was 16 April, 2016. I accept Mr Callaghan’s evidence about those matters. It is not the case that the respondent was required to meet with Ms Smith and make a decision about the continuation of her employment before the expiry of her probationary period. It was her performance during the course of the probationary period which was at issue in the present matter and that period did not expire until 5 April, 2016.
Mr Callaghan gave evidence that he was told by Ms Wieting that she was uncomfortable working with Ms Smith because Ms Smith was uncooperative towards staff that were endeavouring to support and train her.
Ms Smith’s employment was not terminated during her probationary period.
Mr Callaghan was absent on leave from 7 April, 2015 until 14 April, 2015. He returned to work on 15 April, 2015 and reviewed the key performance indicator reports for March, 2015. He says that by that time Ms Smith had billed fees totalling $32,134 which was much less than the other employee that started at about the same time as Ms Smith (her billings were $58,997 over a similar period for the same role). Mr Callaghan says that of greater concern was the comparison in “write-offs” which was 50.5% for Ms Smith compared to the other employee of 22.5%. Mr Callaghan thought it important that the graduate accountant within his team had a similar “write-off” percentage as Ms Smith. He concluded that Ms Smith had achieved an “average hourly rate” across all jobs billed for the relevant period of $117 compared to $199 achieved by the other senior accountant. He concluded that Ms Smith’s performance was unacceptable.
Mr Callaghan’s evidence is that there was a directors’ meeting on 16 April, 2016. At that meeting he raised issues about Ms Smith’s performance and summarised them for the meeting. Mr Callaghan and Ms McGarva discussed and shared their concerns with the other directors concerning the suitability and performance of Ms Smith. Mr Callaghan passed on the feedback that he had received from Ms Wieting and the other team members and staff who had been involved in training Ms Smith. He passed on his own observations of the applicant’s non-compliance and disputation of their procedures and lack of interpersonal skills. He expressed the view that he thought that Ms Smith was unsuited to the role.
Mr Callaghan’s evidence was that all of the directors agreed that Ms Smith had:
a)failed to follow work procedures;
b)failed to follow instructions from mentors whilst being trained
c)failed to attend to directions from her manager and director after jobs were reviewed;
d)was argumentative and openly criticised procedures; and
e)was unable or unwilling to assist clients to solve problems.
A vote was taken and Mr Callaghan’s evidence is that the directors unanimously agreed to terminate Ms Smith’s employment because of her poor performance and a failure to follow procedures and directions and because her interpersonal skills and client management skills were not to the level expected and required of a senior accountant.
Mr Callaghan’s evidence is that he did not decide to terminate Ms Smith’s employment because of her age. His evidence was that at no point was her age discussed and he did not consider that it had any relevance to her poor performance or inability to follow instructions and procedures.
None of Mr Callaghan’s evidence about the meeting, what was discussed or the decision that was taken was challenged by Ms Smith.
The task of implementing the directors’ decision to terminate Ms Smith’s employment was given to Ms Linda Steffens.
On 22 April, 2015 Mr Callaghan, Ms Wieting and Ms Steffens met with Ms Smith. Ms Smith was provided with a letter, signed by Mr Callaghan, advising that her employment had been terminated. Mr Callaghan read the letter to Ms Smith and advised her that her probation period had expired and her employment was terminated. He says that Ms Smith was upset and objected to the decision. She asked why the decision had been made but Mr Callaghan declined to quote “delve into that as our decision was that she did not prove herself to be suitable for the role during the mutually agreed probation.” Mr Callaghan says that he said to Ms Smith that she was able to complete the “compliance” element of the role, but was unable to provide the required service to the expected standard to meet the respondent’s clients’ needs. Other incidents of poor performance or which were thought to demonstrate a poor level of client service were discussed with Ms Smith.
Ms Smith was upset that no reason for the termination of her employment was given in the letter that she was given at that meeting. Moreover, when she pressed for a reason none was given by Mr Callaghan. Ms Smith thought it impolite and lacking in courtesy to tell her why her employment was being terminated. The best that Mr Callaghan would do was to say that he did not have to give a reason as to why she was being terminated because her probation turned out to be unsatisfactory. Mr Callaghan’s unequivocal evidence in re-examination was that the matters that he saw as amounting to Ms Smith’s unsuitability for the role were not matters that he had addressed with her between the meeting that he had with her in February, 2016 and the meeting at which her employment was terminated. Ms Smith’s point of view is plainly reasonable.
Ms Smith requested additional compensation to that which the respondent was obliged to pay to her, on compassionate grounds. The respondent’s directors resolved to pay an additional week’s pay on compassionate grounds as an ex gratia payment.
In June, the respondent recruited an intermediate accountant for Mr Callaghan’s team. In early June, 2015 a replacement senior accountant also commenced work on Mr Callaghan’s team.
On 17 July, 2015 Ms Steffens provided to Ms Smith a “separation certificate” for Centrelink.
Ms Smith’s cross-examination was directed to establishing that despite all of the complaints that Mr Callaghan said he had received about Ms Smith, her performance and her interpersonal skills, nobody had talked to her about those matters and Mr Callaghan did not approach her to talk to her about those matters either. Her cross-examination establishes those matters. That is relevant into one of two ways. First, it might indicate that the evidence given by Mr Callaghan about all of the complaints that he received about Ms Smith’s performance and her interpersonal skills are not credible. Alternatively it might demonstrate that Ms Smith was dealt with harshly and unjustly by the respondent and its directors and employees. However, I do not accept that those matters affect Mr Callaghan’s credit. I found him a generally truthful witness. I formed the impression that whilst things might not have been undertaken in the most desirable way, in hindsight, nonetheless his evidence was generally reliable. As to the second matter, this court has no jurisdiction to deal with dismissals that are said to be harsh and unjust: see s.385 of the Fair Work Act.
Francis Sedgwick gave evidence. He is a director of the respondent company. He too is a certified practising accountant. He gave evidence that he had met Ms Smith when he was a director of another accounting firm in Gatton. That was some time prior to 2003. Ms Smith had applied for a position with Mr Sedgwick’s firm and he had interviewed her. Apart from that, however, he recollected little of their earlier meeting.
Mr Sedgwick confirmed that he participated in a second interview of Ms Smith together with Mr Callaghan in November, 2014. His recollection of the meeting does not descend to specifics. His general recall is that they spoke to Ms Smith about the position and what it would entail. He recalls that Ms Smith told he and Mr Callaghan that she would need help with fringe benefits tax work. Mr Sedgwick gave evidence that he was curious as to how long Ms Smith planned to work in order to address some concerns that he had and accordingly he asked her about that. That was a direct request about how long she intended to work for the respondent. Mr Sedgwick said that he was interested in her answer to that question because:
a)her job history concerned Mr Sedgwick as it showed that in the previous five years she had a number of different employers; and
b)the respondent’s business was built around relationships with clients who did not like talking with a different or new person one year and another new person the next year. Mr Sedgwick said that her thought it important for the respondent’s business to assure clients of continuity of service and relationships and that the staff looking after the clients knew them well and took an interest in them so that client service rapport could be built up over time.
However, Mr Sedgwick disavows any notion that he asked Ms Smith about her age or that he asked about how long she intended to work because he was curious about her age. But it is difficult to accept that evidence. Mr Sedgwick kept notes of the meeting. They are annexure FJS1 to his affidavit. In the bottom third of the page of the notes that he made there is a notation about Ms Smith’s age in these terms
Age: 50 to 55 –
There are more notes:
15+31+13 = 59
Mr Sedgwick accepted that the notes were an estimate of Ms Smith’s age worked out by him during the course of the interview. “15” is a reference to the age that Ms Smith probably was when she left school. He had no explanation for the “31” and he thought “13” was the approximate number of years that Ms Smith had been working as an accountant. Notwithstanding those notations, Mr Sedgwick denied that he had any concerns about Ms Smith’s age. He claimed that he made the notations about Ms Smith’s age because “it’s – it’s just one – it’s something I do. I’m not concerned about it”.
On this point, I found Mr Sedgwick disingenuous. He was plainly concerned about Ms Smith’s age – concerned enough to attempt to work it out and to ask her about how much longer she intended to work.
However, as Mr Sedgwick points out in his evidence, the respondent employed Ms Smith in any event. If it was the case that he had concerns about her age and he thought that she was too old for the job, one might have expected Mr Sedgwick not to have acquiesced in Ms Smith’s employment. Instead, he acquiesced in her employment. Thus, to the extent that Mr Sedgwick’s questions and notations are said to be demonstrative of concern over Ms Smith’s age, they are not evidence of any discrimination against her.
Mr Sedgwick’s unchallenged evidence was that he did say to the applicant that the respondent had a person on Mr Sedgwick’s team who was “at that stage and is working less now, down to 3 days a week, and that this is okay by us; though at that point there does need to be a discussion about salary”. Mr Sedgwick denies Ms Smith’s assertion that he said words to the effect that the older person in his team had slowed down to the point where they could not do the job anymore. On this point of difference, I prefer the evidence of Ms Smith. In the context of a worker who has reached or is reaching retirement age and who has moved to part-time employment three days a week, it is not beyond the realms of possibility that an employer in Mr Sedgwick’s position might comment that they had slowed down to the point where they could not do the job anymore.
Mr Sedgwick confirmed Mr Callaghan’s evidence that he and Mr Callaghan discussed the applicant following their interview with her and there were some concerns arising out of her reserved demeanour and how she might fare in the respondent’s work environment. Mr Sedgwick left the decision about employing Ms Smith to Mr Callaghan.
Mr Sedgwick had no day-to-day contact with Ms Smith apart from a few passing interactions and exchanges of pleasantries.
Mr Sedgwick attended the directors meeting on 16 April, 2015. He says that staffing issues, including Ms Smith’s performance were discussed at that meeting. He says that Mr Callaghan raised performance issues concerning Ms Smith and informed the meeting that her performance was not up to the standard required. Mr Callaghan informed the other directors that Ms Smith was “not working out in the job, she was failing to follow instructions and there were problems with her dealings and interactions with clients.” Mr Sedgwick says that Ms Smith’s age was never discussed during the course of that meeting. He confirms that “the issue” (which is presumably a reference to the ongoing employment of Ms Smith) was put to a vote and all of the directors voted unanimously that her employment should not continue.
May McGarva gave evidence that she is a director of the respondent company. She occupies the position of practice manager for the respondent. Ms McGarva gave evidence that she first met Ms Smith in about 2011 when she was interviewed for a position with the respondent company. Ms McGarva gave evidence that at the 2011 interview she asked Ms Smith words to the effect “why are you leaving your current position?”. Ms Smith told her that she was having some difficulties with her current workplace, including identifying that (at that time) a new person had been recruited above her as her manager and that they were a lot younger than her. Ms McGarva says that she remembers that exchange because it made her feel “uncomfortable – as the applicant conveyed she was upset by the circumstances and I felt that there was likely to be more to the situation however I recall feeling that she did not want to discuss the matter any further”. During that first interview Ms McGarva formed an impression that Ms Smith’s experience was centred around smaller clients. She recommended to the other directors, including Mr Sedgwick, that they not employee Ms Smith. Ms McGarva says she made that recommendation on the basis of her:
a)concerns with her observed interpersonal skills, including the ability to form a relationship with clients and colleagues;
b)concerns with her comments about not being able to find a job in Toowoomba – Ms McGarva’s experience was that there were plenty of firms regularly employing quality candidates and so Ms Smith’s comment struck her as unusual;
c)concerns about why Ms Smith was leaving her employer. She considered something did not “feel right demonstrated by the way that she reacted when I asked questions about why she was leaving and it became clear to me that something was amiss or that there was an underlying concern”;
d)concerns with her technical expertise. Ms McGarva formed the impression that the work Ms Smith had been doing was smaller than the work she would be required to do for the respondent and as such she would be unsuitable for the role.
In November, 2014, Ms McGarva interviewed Ms Smith in the company of Ms Gordon. Ms McGarva remembered Ms Smith from her earlier interview. Given the nature of the work that was to be undertaken in the role for which the interview was being conducted, Ms McGarva enquired of Ms Smith about the work that she had been recently undertaking. Ms Smith told she and Ms Gordon that she had been working on “larger and more complicated work in her latest position”. Ms McGarva says that as a result of her responses, she felt more comfortable that her level of technical expertise had improved since her previous interview.
Ms McGarva recalled Ms Smith mentioning that someone younger had been appointed above her as manager in a previous role and she had effectively been demoted. Ms Smith commented with words to the effect that her client contact had been further restricted, that she was doing smaller work because that manager needed to get to know all the clients. She commented that this person was much younger than her (specifically she said that they were 26 years old) and that they were appointed as part of the director’s succession plan. Ms McGarva says that these statements re-enlivened her concerns from the 2011 interview. Ms Smith went on to explain that she was concerned that this situation was happening again at her current workplace and therefore she felt the need to exit as she felt her job may not be secure.
Ms Smith did not challenge Ms McGarva’s recounting of the 2011 interview or the 2014 interview.
After the interview concluded, Ms McGarva and Ms Gordon discussed it between themselves and they then met with Mr Callaghan and Mr Sedgwick and suggested that a second interview take place with them. Ms McGarva’s evidence was that she thought that a second interview was appropriate because of Ms Smith’s significant years of experience and that experienced accountants were in short supply.
After the second interview was conducted by Mr Callaghan and Mr Sedgwick, Ms McGarva says the directors met to discuss Ms Smith. She says that Mr Callaghan voiced some concerns with Ms Smith’s ability to relate to and converse with his clients given her demonstrated demeanour and personality. He was concerned about her “interpersonal skill set” but Ms McGarva recalls that it was agreed that due to her significant level of experience that she might be able to fulfil the role and they would monitor her performance around the other areas.
Ms Smith did not work directly for Ms McGarva but she sat daily in the opposite office and her proximity to Ms McGarva’s office and the printer gave Ms McGarva the opportunity to regularly observe Ms Smith conducting some conversations and interactions with staff and clients. Ms McGarva gives evidence that she recalls a specific phone call that occurred on or around 26 March, 2015 with a client referred to in the evidence as “Mrs JM”. Ms McGarva says that the phone call came to her attention as she could hear Ms Smith on the telephone and she could hear her manner and tone of voice which she thought was unprofessional, hesitant, abrupt, dismissive and unhelpful. Having regard to what she heard, Ms McGarva concluded that Ms Smith was attempting to help the client provide a backup of the MYOB file to the respondent’s office. Ms McGarva says that the conversation made her “quite uncomfortable”. Ms McGarva says that the incident alarmed her sufficiently that she brought it to the attention of Mr Callaghan and Ms Smith’s manager Ms Wieting. She thought that Ms Smith’s phone manner was abrupt, dismissive, unhelpful and displayed a lack of empathy. She thought that Ms Smith demonstrated that she was unable to attend to client queries which was integral to the role that she occupied. She thought that Ms Smith did not know how to help the client or alternatively was not listening properly and was not perceptive enough to understand that the client did not understand or perhaps, she simply did not want to help. She related these concerns to Mr Callaghan and Ms Wieting.
Ms McGarva says that on 13 April, 2015 she heard the applicant on another phone call to “Mrs H”. She thought that Ms Smith conducted the phone call in a way which was similar to the phone call that she had with “Mrs JM”. Ms McGarva says that she formed the impression that the client was making a query related to the accounting software MYOB and that Ms Smith was unable to help the client with her enquiry. She needed the assistance of a far more junior team member from Ms McGarva’s team to provide the assistance to the client. Ms McGarva says that she was concerned about this because of Ms Smith’s assertions at interview that she was familiar, confident and competent with programs like MYOB. Ms McGarva says that she raised this phone call with Ms Wieting as well. As a result of the conversation with Ms Wieting, she and Ms McGarva agreed to obtain to arrange further training for Ms Smith and whilst the two were together, Ms McGarva drafted a detailed email to Ms Smith requesting that she meet with Kirsty Gillett for further training.
Ms McGarva and Ms Wieting had a number of conversations about Ms Smith in which Ms Wieting reported to Ms McGarva that she was feeling frustrated because she did not think that Ms Smith was listening when other staff attempted to teach things and she did not take notes despite being asked to do so. Ms Wieting expressed concern to Ms McGarva that Ms Smith was not following the respondent’s procedures, resulting in work being done inefficiently.
As a result of her discussions with others and her own observations, Ms McGarva formed the view that despite repeated attempts to train Ms Smith in the practices and procedures adopted by the respondent, she was unwilling to learn and follow those procedures. Ms McGarva formed the view that she lacked the communication and interpersonal skills to successfully fulfil the role of a senior accountant.
Ms McGarva attended the directors meeting that took place on 16 April, 2015. She confirms that Ms Smith’s performance was discussed at that meeting and there was discussion about whether her employment should continue. Ms McGarva says that she explained to all of the directors what she had heard on the phone call and that she felt that overall Ms Smith did not uphold the respondent’s client service model and that she was not confident. According to Ms McGarva there was discussion about Ms Smith’s work performance. Ms McGarva’s evidence confirmed that all directors considered the matters raised at the meeting and unanimously agreed that Ms Smith’s employment should not continue.
The remaining director of the respondent, Angelique Gordon, also gave evidence. She confirmed that she interviewed Ms Smith with Ms McGarva on 18 November, 2015. Her evidence was that after interviewing Ms Smith, Ms Gordon had concerns regarding whether the respondent should offer Ms Smith the position. Whilst Ms Gordon thought that Ms Smith had the requisite technical experience and knowledge she was concerned about her employment history, the short length of time spent in some of her previous positions and that she might not have had the requisite interpersonal skills required for the position. Ms McGarva shared her concerns. Consequently, she and Ms McGarva recommended a second interview take place with Ms Smith and the other two directors, Mr Callaghan and Mr Sedgwick.
Ms Smith challenged Ms Gordon’s version of events and suggested to her that she in fact had no concerns about Ms Smith and her capacity to be employed in the position under consideration. Ms Smith’s cross-examination centred upon the fact that Ms Gordon did not append to her affidavit any notes that she might’ve made either at the interview in November, 2015 or of her discussions with Ms McGarva, Mr Callaghan or Mr Sedgwick. However, in my view, Ms Gordon’s evidence was given reliably and I have no reason to doubt her evidence. I accept it.
She confirmed that ultimately the decision to employ Ms Smith was left with Mr Callaghan.
Ms Gordon had very little to do with Ms Smith on a day-to-day basis. She attended the directors meeting that took place on 16 April, 2015 at which Ms Smith’s ongoing employment was discussed. Her evidence confirmed that at no point was Ms Smith’s age raised as an issue but rather her performance and her ability to provide an adequate level of direct service to the respondent’s clients on non-tax technical issues. She heard Ms McGarva talk about the telephone call that she had witnessed Ms Smith be involved in.
Ms Gordon says that she voted to terminate Ms Smith’s employment solely based on the concerns that she had regarding Ms Smith’s performance issues and her failure to follow instructions and directions and the possible reputational damage that she could do to the respondent’s business should her employment be continued.
The remaining three witnesses in the case were Ms Wieting, Ms Smith’s immediate supervisor, Ms Kirsty Gillett, another accountant employed by the respondent and Lynda Steffens an accountant who was the “business manager” for the respondent.
Ms Gillett was appointed to be Ms Smith’s “buddy” in accordance with the respondents mentoring program for new staff. It was also her role to train is Ms Smith as part of Mr Callaghan’s team. Ms Gillett’s evidence was concerned with her interactions with Ms Smith, on a day by day basis. Ms Gillett’s evidence was that she observed that Ms Smith would ask a lot of questions, but she would never write anything down or take any notes of the matters about which she was receiving training. Ms Gillett thought that Ms Smith’s technical skills were satisfactory but she observed that “she wanted to fight the system and was not keen to conform to [the respondent’s] procedures and directions. I observed and ascertained she preferred to work ‘her way’ and in her ‘own style’.” Ms Gillett’s impression was that often Ms Smith’s replies to her attempts to help her were abrupt and abrasive. She thought Ms Smith was argumentative and generally liked to be technically right. She displayed a significant reluctance to adhere to workplace procedures.
Over the course of her interactions with Ms Smith, Ms Gillett developed concerns that Ms Smith was not accepting of assistance particular with the respondent’s procedures and systems and struggled with the computer systems and information technology systems that the respondent had in place. While she was not so concerned with the technical aspects of Ms Smith’s work, she was concerned that her overall inefficiency and the impost that she was placing on Ms Gillett who was being taken away from her own work. She also had concerns about the way in which Ms Smith was relating to other staff, the manner in which she answered the phone and her overall compatibility with the respondent’s workplace. Ms Gillett passed these concerns onto Ms Wieting during a meeting she had with her in the morning of 24 February, 2015.
Ms Gillett had another conversation with Ms Wieting on 4 March, 2015 about her concerns with Ms Smith’s non-adherence to the respondent’s procedures and her failure to follow directions given to her. Ms Wieting offered her advice about how she might approach Ms Smith differently.
Ms Gillett’s evidence was that as time went on, Ms Smith appeared to come to resent Ms Gillett’s presence and the assistance that she was required by Ms Wieting to provide to Ms Smith. Ms Gillett described her demeanour as “very negative and abrupt” at times.
On 17 March, 2015 Ms Gillett had her own staff review with Mr Sedgwick and Mr Callaghan. She took the opportunity to inform the directors of the effects of working with Ms Smith upon her on a day-to-day basis. She told them that she thought that Ms Smith was abrupt and that she and Ms Smith did not work well together. She told them that she thought Ms Smith’s personality was such that she “had no traction with her, she would rebut me and was very abrupt in her manner”.
Ms Gillett gave evidence that she heard the phone call about which Ms McGarva gave evidence, between Ms Smith and the client “Mrs JM”. Her evidence is that Ms Smith sounded nervous and was not fluent or confident in her manner. Ms Gillett gave evidence that she sat next to Ms Smith and heard all of the phone calls Ms Smith made. She observed that Ms Smith’s manner was not professional and was very abrupt and unhelpful. So concerned was Ms Gillett that she went to Ms Wieting and told her about her observations.
Overall, Ms Gillett’s evidence paints a picture of a deteriorating relationship between she and Ms Smith principally because Ms Smith came to resent the direction that Ms Gillett was giving her and the oversight that she was undertaking over Ms Smith’s work.
Ms Smith’s cross-examination of Ms Gillett was designed to test her conclusions and assertions about her observations of Ms Smith’s manner and the decline over time in the quality of their working relationship. Ms Smith elicited from Ms Gillett that Ms Gillett had never raised with Ms Smith the concerns that she was having in dealing with Ms Smith or in the way in which she felt their working relationship was deteriorating. Ms Gillett had raised it with others and she saw it as their role to raise these things with Ms Smith rather than talking to her about those matters herself, even though she was designated as Ms Smith’s “buddy” or mentor. Ms Smith’s cross-examination concluded with her putting to Ms Gillett that her observations in the quality of their interactions and relationship were all matters that were in Ms Gillett’s own mind not supported by the reality of the situation. Ms Gillett denied that suggestion. Her evidence was that she thought the situation was so bad that she contemplated obtaining alternative employment and in fact attended another job interview.
Ms Steffens’ evidence was that she was responsible for the Human Resources functions of the respondent’s business. Her evidence covered the recruitment process which led to Ms Smith being interviewed for the position and offered employment with the respondent. As the evidence I have recorded above indicates, she did not participate in the interview processes or in the decision-making with respect to Ms Smith’s employment.
Ms Steffens completed an induction program with Ms Smith when she commenced employment. Ms Steffens’ evidence was that her impression of Ms Smith, after completing the induction with her, was that she thought that Ms McGarva’s concerns about Ms Smith’s interpersonal skills and interactions with people were well-founded. Ms Steffens said that she found it very difficult to build any kind of rapport with Ms Smith during the induction meeting because of her abrupt closed manner.
Ms Steffens’ evidence reiterated in large measure what other people had told her including Ms Wieting. Apart from her initial interaction with Ms Smith during the course of her induction it seems that she had little day-to-day contact, if any, with Ms Smith. Ms Steffens was required to prepare briefing notes for a meeting of the directors of the respondent that was to take place on 16 April, 2015. For that purpose she asked Ms Wieting to provide her with details of the applicant’s performance. Ms Wieting did so in an email dated 14 April, 2015.
Further, Ms Steffens gave evidence of one of her only interactions with Ms Smith which occurred on 7 April, 2015. Ms Smith was late for work. In accordance with the procedures in the respondent’s office, her late arrival was “escalated” to Ms Steffens who then tried to contact Ms Smith. When Ms Smith answered, Ms Steffens explained that she was concerned that Ms Smith had not yet arrived at work. According to Ms Steffens, Ms Smith seemed shocked by this. Ms Steffens pointed out that it was almost 9:00am and that her starting time was 8.24am. In response, Ms Steffens says that Ms Smith quite “abruptly and rudely informed me that she didn’t have a clock that worked and she was an hour behind because daylight savings had finished on the weekend.” Ms Steffens asked Ms Smith when she expected to arrive at work and she “abruptly told me words to the effect that “[she was] in the same place on the Gatton bypass as [she] would normally be at 8.00am in the morning and [she] would arrive at work when [she] got there”. Ms Steffens said that she was very confused at Ms Smith’s response, because Queensland is not affected by daylight savings changes.
Ms Steffens attended the directors meeting on 16 April, 2015 when Ms Smith’s employment was discussed. Her evidence is to the effect that the directors discussed her performance, her attitude, her interpersonal skills and her capacity to fit into the respondents working environment. Her evidence confirmed that of the directors (set out above) that it was those matters that informed their decision to terminate Ms Smith’s employment. The question of her age did not arise. Ms Steffens attended Ms Smith’s termination meeting with Mr Callaghan and the subsequent meeting held by the directors to determine to give Ms Smith a further week’s pay by way of an ex gratia payment.
Ms Steffens was responsible for completing a separation certificate that was forwarded to Ms Smith for Centrelink purposes. She was responsible for selecting the option “unsuitability for this type of work” as the reason for the termination of her employment. That led to Ms Smith sending what can only be described as a rude and abrasive email to Ms Steffens about her selection of that on the separation certificate. Ms Smith cross-examined Ms Steffens about her selection of the option “unsuitability for this type of work” and suggested to her that the respondent considered that she was unsuitable for that type of work because of her age. Ms Steffens denied that.
Ms Smith also cross-examined Ms Steffens about her termination payment. She asserted that some errors had been made in the calculation of her termination payment. Ms Steffens freely admitted that errors had been made but that they had been rectified. None of those matters, however, are relevant to the issues that I have to decide.
Ms Jodie Wieting gave evidence. She is an accountant by occupation and has been a senior client manager in the employ of the respondent since July, 2009. Ms Wieting’s evidence was to the effect that she was responsible for introducing Ms Smith to Mr Callaghan’s team. Her evidence describes how she took Ms Smith through the office procedures and software packages used for the performance of work. She was also responsible for taking Ms Smith through some client files and instructing her on the procedures to be adopted to do the work that was required. She explained in her evidence the significance of what she described as the “blue file procedure” details of which was contained in Ms Smith’s procedures manual which she received at the commencement of her employment.
Ms Wieting, in her evidence, described her day-to-day interaction with Ms Smith and compared her experiences of Ms Smith with another senior accountant who started shortly before Ms Smith’s employment commenced, Lynda Fitch. She gave detailed evidence about each of the accounting jobs that Ms Smith was asked to perform work on and the shortcomings in her performance in respect of that work. In particular, she gave evidence about her observations of an occasion when the other new senior accountant Ms Fitch was asked to go through a certain procedure with Ms Smith at Ms Wieting’s request. Ms Wieting’s evidence was that that she could hear the applicant arguing with Ms Fitch about the procedure and saying words to the effect that she thought the procedure was ridiculous and that she was frustrated following it. Ms Wieting described her tone as abrupt and that she was unhappy about following the procedure set out in the procedures manual. She heard Ms Fitch encouraging Ms Smith to “give our procedure a go”.
Ms Wieting gave evidence of observing Ms Smith’s telephone conversation with “Mrs JM” and about which Ms McGarva and Ms Gillett had given evidence. Her evidence was generally consistent with their evidence. Ms Smith however, considered there was an inconsistency between Ms Wieting’s evidence – she said that Ms Smith’s voice was raised and Ms Gillett’s evidence was that Ms Smith’s voice was not raised.
Ms Wieting also gave evidence of her conversations with Mr Callaghan, Ms McGarva and Ms Steffens about her observations of Ms Smith’s performance. That was generally consistent with the evidence given by Mr Callaghan and Ms McGarva.
Ms Smith put to Ms Wieting that she and Ms Gillett had fabricated “the whole idea” that Ms Gillett was unhappy working with Ms Smith as a “device to support the respondent’s argument that my employment was terminated in part due to my unfriendliness”. Ms Wieting disagreed with that proposition.
Ms Wieting gave evidence about a conversation that she had with Ms Smith leading up to Easter 2015. She says that Ms Smith was walking past her office and they began talking about their plans for the Easter long weekend. Ms Smith described that she liked to spend a lot of time in the garden and explained that her lawn was quite long and that she was trying to get her neighbour to mow it. She also said that her internet was connected and explained that her antennae was broken and therefore her television did not work. Ms Wieting says that she made a comment like: “do you even have hot water at your place?”. Ms Wieting explained in evidence that having come from a rural area herself she has experienced people that lived simply who did not necessarily have electricity, phone or hot water. Ms Wieting did not see that the question that was related to Ms Smith’s age.
Ms Wieting did not attend the directors meeting that occurred on 16 April, 2015 during which the decision was taken to terminate Ms Smith’s employment. She attended the meeting between Ms Smith, Mr Callaghan and Ms Steffens when Ms Smith was informed of the termination of her employment.
Conclusion
There is no doubt that the respondent took adverse action against Ms Smith when her employment was terminated.
I accept the evidence of Mr Callaghan, Mr Sedgwick, Ms McGarva and Ms Gordon that the reason that they resolved as directors of the respondent to terminate Ms Smith’s employment was because she was unsuitable for the role that they wished her to fulfil. I accept that they were concerned about her willingness and capacity to follow the respondent’s procedures and her interpersonal skills. They were concerned about her contact with clients. Whilst she was technically sound, the directors of the respondent formed the view that she was unsuitable for the position because of those matters.
The evidence does reveal that Ms Smith may have a basis for legitimate complaint about the way in which she was treated in the respondents business. The evidence shows that whilst there were difficulties noticed with her behaviour as set out above, it seems that no one in the respondent’s organisation saw it as their role to speak to her about it. Ms Gillett, Ms Wieting and Ms Steffens all disavowed an obligation to speak with Ms Smith about their concerns for her behaviour. Ms McGarva did not do so because she was not part of Ms McGarva’s team. For reasons that are not at all clear neither did Mr Callaghan. Moreover, the way in which Ms Smith’s termination was handled demonstrated a lack of respect for her in the extreme and the failure to provide any real reason for the termination of her employment was unjustified even if she was being terminated because her probation period was unsatisfactory.
However, these are not proceedings for unfair dismissal but rather a general protections claim based on age discrimination. As the respondent submits, the merits of the decision to terminate Ms Smith’s employment is not of itself a justiciable issue in these proceedings. Ms Smith’s suitability for the position as a senior accountant due to her unsatisfactory performance, or whether her performance was in fact poor or whether her termination was unfair, are all of little relevance to the central issue for determination in these proceedings.
Irrespective of whether s.361(1) of the Fair Work Act is engaged, I am satisfied that the respondent has demonstrated through its evidence that the reason why Ms Smith’s employment was terminated was because she:
a)failed to carry out the duties expected of a senior accountant in accordance with and as required by the respondent’s standard procedures and policies to the reasonable satisfaction of the respondent;
b)failed to comply with reasonable instructions and lawful directions of the respondent;
c)conducted herself in a way that was unhelpful towards other staff members; and
d)conducted herself in a way that was unaccepting of assistance and training provided to her by other staff members.
There is ample evidence to support each of these matters.
There is no direct evidence of age discrimination against Ms Smith or any evidence that her age was a substantial and operative reason for her dismissal. Moreover, there is no evidence from which I would draw such an inference. I am satisfied, and I find, that Ms Smith’s age did not play any part in the decision of the respondents directors to terminate her employment.
In those circumstances, the application must be dismissed.
I certify that the preceding one hundred and twenty (120) paragraphs are a true copy of the reasons for judgment of Judge Jarrett delivered on 7 November, 2018.
Date: 7 November 2018
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