Vink v LED Technologies Pty Ltd
[2012] FMCA 917
•9 October 2012
FEDERAL MAGISTRATES COURT OF AUSTRALIA
| VINK v LED TECHNOLOGIES PTY LTD | [2012] FMCA 917 |
| INDUSTRIAL LAW – Adverse action – whether the applicant was dismissed because of his age. |
| Fair Work Act 2009, ss. 342, 351, 360, 361 |
| Australian Securities and Investment Commission v Australian Lending Centre Pty Ltd and Others (No.3) (2012) 287 ALR 693; [2012] FCA 43 Board of Bendigo Regional Institute of Technical and Further Education v Barclay [2012] HCA 32 General Motors-Holden's Pty Ltd v Bowling (1976) 136 CLR 676, (1976) 12 ALR 605, (1976) 51 ALJR 235 Jones v Dunkel (1959) 101 CLR 298, [1959] ALR 367, 32 ALJR 395, [1959] HCA 8 |
| Applicant: | MARTIN BERNARD VINK |
| Respondent: | LED TECHNOLOGIES PTY LTD |
| File number: | MLG 1798 of 2011 |
| Judgment of: | Riley FM |
| Hearing date: | 23 August 2012 |
| Date of last submission: | 23 August 2012 |
| Delivered at: | Melbourne |
| Delivered on: | 9 October 2012 |
REPRESENTATION
| Advocate for the Applicant: | The applicant appeared in person |
| Solicitors for the Applicant: | The applicant was not represented |
| Counsel for the Respondent: | Simone L Bingham |
| Solicitors for the Respondent: | Griffith Hack Lawyers |
ORDERS
The application filed on 21 December 2011 be dismissed.
| FEDERAL MAGISTRATES COURT OF AUSTRALIA AT MELBOURNE |
MLG 1798 of 2011
| MARTIN BERNARD VINK |
Applicant
And
| LED TECHNOLOGIES PTY LTD |
Respondent
REASONS FOR JUDGMENT
Introduction
In this matter, the applicant claims that his former employer took adverse action against him for a prohibited reason. More particularly, the applicant claims that he was dismissed from his employment because of his age.
The applicant is an accountant. He was born on 27 January 1945.
He is 67 years old. He said that, after “assisting a friend” from July 2002 until October 2010, he found it “difficult to get back into accounting”.
The applicant said that, last year, he saw an advertisement for a position with the respondent. On 1 June 2011, the applicant sent the respondent an email, saying:
Would you be willing to interview a 66 year old QuickBooks expert?
The respondent’s general manager, Daniel Groves, responded the same day by email, saying:
We are looking for people that have experience in our industry.
We already have over 30 applicants, send your resume if you would like to be considered.
On or about 29 June 2011, the applicant responded to an advertisement placed by a recruitment agency on behalf of the respondent.
The advertisement sought a company accountant with a salary of $81,750. The advertisement listed 12 core job functions including:
a)all in-house accountancy duties;
b)basic bookkeeping; and
c)working with Quickbooks.
The applicant was short-listed. He was invited to an interview with Andrew Russo and Tony Ottobre, the managing director of the respondent. Mr Russo interviewed the applicant, but Mr Ottobre was unavailable. Another candidate was given the job. That person’s employment was soon terminated.
On 9 August 2011, Mr Groves conducted an interview with the applicant. The applicant followed up the interview with a proposal to review the respondent’s database. The respondent’s new general manager, David Clerk, interviewed the applicant on 18 August 2011.
Mr Ottobre was in the United States at this time. He said in his affidavit sworn on 30 April 2012 that he authorised the employment of the applicant as company accountant. However, at the hearing he amended his affidavit to say that he authorised the applicant to be employed as a bookkeeper. Mr Ottobre said that, at the time, he understood the applicant to be an accountant aged in his sixties. He said that the applicant’s resume was sent to him in the United States. Mr Ottobre said that he had no issue with employing a person of that age.
On 25 August 2011, the respondent hired the applicant. There was no letter of appointment.
From 31 August 2011 until 3 October 2011, the applicant worked for the respondent one day per week, while he finished another project. During that time, the applicant said that he discovered that the respondent’s QuickBooks accounting software had been poorly maintained and slow. From 31 August 2011 until 9 November 2011, the applicant reviewed the respondent’s QuickBooks database.
On 13 September 2011, the applicant sent Mr Clerk an email outlining various deficiencies with the respondent’s QuickBooks database and suggesting various remedies. Mr Clerk replied by email, later the same day, agreeing to some of the applicant’s proposals and saying others should be dealt with after the applicant commenced full time, and, in one case, after a detailed plan of time to be allocated to the project and a finish date had been determined.
On about 28 October 2011, Mr Ottobre returned from the United States. According to the applicant, on about 4 November 2011, Mr Ottobre:
a)accused the applicant of not answering Mr Ottobre’s emails;
b)accused the applicant of sabotaging the respondent’s email system;
c)accused the applicant of not paying certain of Mr Ottobre’s personal bills; and
d)refused the applicant’s request to have a key to the respondent’s premises.
The applicant claimed that the respondent had obtained a new email system while Mr Ottobre was overseas and it needed debugging. The applicant claimed that he had paid Mr Ottobre’s personal bills before he complained about them.
According to Mr Ottobre in his affidavit sworn on 30 April 2012, on his return from the United States, he developed several concerns about the applicant’s performance. Specifically, Mr Ottobre said he was concerned that Mr Groves had told him that bills were going unpaid and payments were not being correctly made.
In his affidavit sworn on 22 August 2012, Mr Ottobre added that, on his return from the United States, he received a number of requests from creditors seeking the payment of overdue debts. Mr Ottobre said he found this embarrassing. He also said he was concerned about the applicant’s ability to fulfil the basic functions of his job.
On 7 November 2011, the applicant sent Mr Clerk another email outlining the various deficiencies with the respondent’s accounting software. Mr Clerk replied the next day by email, noting the difficulties of implementing change in small businesses, giving approval for the applicant to engage an additional person to help with the work and saying that he anticipated that the applicant would “deliver great results”.
At about 9am on 9 November 2011, the applicant was asked by
Mr Clerk to assist with disciplining an employee. At about 10 am on
9 November 2011, Mr Clerk accused the applicant of being responsible for Mr Ottobre’s personal telephone being disconnected. Also on
9 November 2011, Mr Ottobre’s daughter, Jenni, accused the applicant of having done something to the computer because it was not working as quickly as it had previously.
In his affidavit sworn on 30 April 2012, Mr Ottobre said that he decided to dismiss the applicant because of performance issues, namely:
a)an amount of $189,000 was incorrectly paid twice while the applicant was the company accountant;
b)there was in excess of $900,000 owing by the respondent that had been outstanding for between one and 30 days, when it had been the practice of the company to pay all bills as they came in; and
c)on 3 November 2011, a receptionist sent Mr Clerk an email saying that she had been getting calls throughout the day from customers who had paid their bills saying that their statements did not reflect the payments.
At 9am on 10 November 2011, Mr Clerk dismissed the applicant. According to the applicant, Mr Clerk said:
a)Mr Ottobre had accepted that the applicant was not responsible for Mr Ottobre’s telephone being disconnected;
b)in discussions between Mr Ottobre and Mr Clerk the previous night, it had been decided that the applicant was the wrong fit for the respondent;
c)Mr Ottobre wanted a “youthful and vibrant” work atmosphere; and
d)Mr Ottobre wanted his daughter, Jenni, to take the applicant’s position.
The applicant said he told Mr Clerk that he could not be dismissed for reasons of his age. The applicant said Mr Clerk said that, within three months of employment, an employer could dismiss an employee for any reason.
The applicant sent Mr Clerk and Ms Ottobre an email at 11.07 am on 10 November 2011 by way of a hand over for Ms Ottobre. Mr Clerk sent the applicant an email at 11.11 am on 10 November 2011. It said:
Thank you for your understanding and the update.
Unfortunately in this circumstance the fit was not right.
We thank you for your contribution and wish you all the best in your next endeavour.
Mr Ottobre said in his affidavit sworn on 30 April 2012 that:
a)at no time in his discussions with Mr Clerk or his other employees did he say that the applicant’s age was an issue or that his age had anything to do with the termination of his employment;
b)Mr Ottobre’s decision to terminate the applicant’s employment was in no way based on his age;
c)Mr Ottobre freely decided to employ the applicant knowing he was aged in his sixties;
d)the respondent was required to utilise its external accountants to resolve the issues left by the applicant;
e)Mr Ottobre did not dismiss the applicant to employ Ms Ottobre, although she did assist in resolving bookkeeping issues following the applicant’s departure; and
f)the applicant’s replacement is a 59 year old company accountant.
In his affidavit sworn on 22 August 2012, Mr Ottobre said:
a)following the applicant’s dismissal, it took Mr Ottobre and his staff about two weeks to “rectify the serious problems caused by the applicant due to his ineptitude”;
b)before becoming ill with cancer, Mr Ottobre’s daughter had fulfilled the bookkeeper’s role; and
c)after the applicant’s departure, Mr Ottobre’s daughter was only able to assist in rectifying the problems for about one and a half days due to her ill health.
The relevant law
Section 351 of the Fair Work Act 2009 (“the Act”) provides that:
(1)An employer must not take adverse action against a person who is an employee, or prospective employee, of the employer because of the person's … age … .
Note: This subsection is a civil remedy provision (see Part 4-1).
(2) However, subsection (1) does not apply to action that is:
(a) not unlawful under any anti-discrimination law in force in the place where the action is taken; or
(b) taken because of the inherent requirements of the
particular position concerned; or
(c) …
(3) Each of the following is an anti-discrimination law:
(aa) the Age Discrimination Act 2004 ;
…
(b) the Equal Opportunity Act 1995 of Victoria;
… .
Section 342 of the Act defines adverse action to include dismissal.
Section 360 of the Act provides that:
For the purposes of this Part, a person takes action for a particular reason if the reasons for the action include that reason.
Subsection 361(1) of the Act provides 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, in proceedings arising from the application, that the action was, or is being, taken for that reason or with that intent, unless the person proves otherwise.
The High Court considered the effect of s.361 of the Act in Board of Bendigo Regional Institute of Technical and Further Education v Barclay [2012] HCA 32 (7 September 2012). In that case, the alleged reason for the adverse action was that the employee was an officer or member of an industrial association, or engaged or proposed to engage in particular kinds of industrial activity. French CJ and Crennan J said:
44.There is no warrant to be derived from the text of the relevant provisions of the Fair Work Act for treating the statutory expression "because" in s 346, or the statutory presumption in s 361, as requiring only an objective enquiry into a defendant employer's reason, including any unconscious reason, for taking adverse action. 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?".
45.This question is one of fact, which must be answered in the light of all the facts established in the proceeding. Generally, it will be extremely difficult to displace the statutory presumption in s 361 if no direct testimony is given by the decision-maker acting on behalf of the employer. 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. (citations omitted)
French CJ and Crennan J also considered the effect of s.360 of the Act at [57] to [59]. Their Honours adopted the reasons of Mason J in General Motors-Holden's Pty Ltd v Bowling (1976) 136 CLR 676, (1976) 12 ALR 605, (1976) 51 ALJR 235 to the effect that, for an applicant to succeed, the reason for the adverse action must be “a substantial and operative factor” in the reasons for the adverse action.
Gummow and Hayne JJ said much the same at [127]:
In determining an application under s 346 the Federal Court was to assess whether the engagement of an employee in an industrial activity was a "substantial and operative factor" as to constitute a "reason", potentially amongst many reasons, for adverse action to be taken against that employee. In assessing the evidence [said] to discharge the onus upon the employer under s 361(1), the reliability and weight of such evidence was to be balanced against evidence adduced by the employee and the overall facts and circumstances of each case; but it was the reasons of the decision-maker at the time the adverse action was taken which was the focus of the inquiry.
Heydon J said at [146]:
To search for the "reason" for a voluntary action is to search for the reasoning actually employed by the person who acted. Nothing in the Act expressly suggests that the courts are to search for "unconscious" elements in the impugned reasoning of persons in Dr Harvey's position. No requirement for such search can be implied. This is so if only because it would create an impossible burden on employers accused of contravening s 346 of the Act to search the minds of the employees whose conduct is said to have caused the contravention. How could an employer ever prove that there was no unconscious reason of a prohibited kind? An employer's inquiries of the relevant employees would provoke, at best, nothing but hilarity. The employees might retort that while they could say what reasons they were conscious of, they could say nothing about those they were not conscious of.
The reasons for the applicant’s dismissal
The parties agreed that the respondent’s decision to dismiss the applicant was made by Mr Ottobre.
The applicant maintained that the respondent dismissed him because of his age. The evidence the applicant relied upon was his own testimony that Mr Clerk told him that Mr Ottobre wanted a “youthful and vibrant” work atmosphere. This is obviously hearsay, insofar as it purports to be evidence about what Mr Ottobre actually wanted or said to Mr Clerk. However, the court is able to receive the applicant’s evidence about the words he heard Mr Clerk say to him.
Neither party called Mr Clerk to give evidence. Counsel for the respondent said that he was no longer an employee of the respondent. However, as far as I can tell, there was no evidence to that effect. In any event, the respondent argued that, as Mr Clerk was a former employee, no Jones v Dunkel inference should be drawn against the respondent: Australian Securities and Investment Commission v Australian Lending Centre Pty Ltd and Others (No 3) (2012) 287 ALR 693 at [153]. As the applicant was unrepresented, I do not consider, in the circumstances of this case, that it would be appropriate to draw a Jones v Dunkel inference against him.
It was put to the applicant that Mr Ottobre’s wanting a youthful culture was not the reason for his dismissal. The applicant said firmly that that was the reason that was given to him. It was not put to the applicant that Mr Clerk did not say to the applicant that Mr Ottobre wanted a vibrant and youthful culture.
In all of the circumstances of this case, I consider that it is probable that Mr Clerk did tell the applicant that Mr Ottobre wanted a vibrant and youthful culture. However, that is not to say that Mr Ottobre did want a vibrant and youthful culture or that that was his reason for dismissing the applicant. It may be that Mr Clerk told the applicant that Mr Ottobre wanted a vibrant and youthful culture because he thought that would be less hurtful than telling the applicant that Mr Ottobre thought he was incompetent. However, as Mr Clerk was not called to give evidence, that is speculative. Whatever Mr Clerk might have told the applicant, the court’s enquiry must be into Mr Ottobre’s reasons for dismissing the applicant.
The first specific reason Mr Ottobre gave in his affidavit sworn on
30 April 2012 for dismissing the applicant was that the applicant had paid an account of $189,200 twice. The second time that account was paid, according to the bank statement, was 10 November 2011.
Mr Ottobre conceded in cross-examination that he was not aware that the bill had been paid a second time when he decided on the evening of 9 November 2011 to dismiss the applicant.
The second specific reason Mr Ottobre gave in his affidavit sworn on 30 April 2012 for dismissing the applicant was that the applicant had not promptly paid bills, and there was about $900,000 of bills that were unpaid after one to thirty days. However, at the commencement of his evidence before this court, Mr Ottobre said that he did not rely on the exhibit evidencing that issue. He explained that the exhibit did not concern bills owed by the respondent, but accounts owed to the respondent.
The third specific reason Mr Ottobre gave in his affidavit sworn on
30 April 2012 for dismissing the applicant was that, on
3 November 2011, a receptionist sent Mr Clerk an email saying that she had been getting calls throughout the day from customers who had paid their bills saying that their statements did not reflect the payments. The receptionist’s email was exhibited to Mr Ottobre’s affidavit sworn on 30 April 2011. There was no suggestion that Mr Ottobre was not aware of that email when he made the decision on 9 November 2011 to dismiss the applicant. I accept that the receptionist’s email was a factor in Mr Ottobre’s decision to dismiss the applicant.
In his affidavit sworn on 30 April 2012, Mr Ottobre said that
Mr Groves had told him that bills were going unpaid and payments were being incorrectly made. Mr Groves was not called to give evidence. There was no specific explanation for Mr Groves not being called. However, it appears that Mr Clerk had replaced Mr Groves as general manager and Mr Groves had left the respondent’s employ. However, Mr Ottobre’s claim that Mr Groves told him that bills were going unpaid and payments were being incorrectly made was not challenged. In view of all the evidence in the case, including the demeanour of witnesses, I accept that Mr Groves did tell Mr Ottobre that bills were going unpaid and payments were being incorrectly made.
The original evidence Mr Ottobre provided in support of his allegation that bills were going unpaid and payments were being incorrectly made were the first and second specific reasons mentioned above. However, as became apparent at the hearing, those examples were without substance. The allegation on 9 November 2011 that the applicant had failed to pay Mr Ottobre’s personal telephone bill and caused the telephone to be disconnected was withdrawn on 10 November 2011.
On the other hand, in his affidavit sworn on 22 August 2012,
Mr Ottobre also said that, after returning from the USA, he received a number of requests from creditors seeking payment of overdue accounts and this caused him embarrassment. This evidence was not challenged. I accept it, and accept that it was a factor in Mr Ottobre’s decision to dismiss the applicant.
I also accept that Mr Ottobre believed, rightly or wrongly, when he made the decision to terminate the applicant’s employment, that bills were going unpaid and payments were being incorrectly made.
At the hearing, Mr Ottobre was much more blunt about his reasons for dismissing the applicant than he had been in his affidavits. He told the applicant:
The reason you were dismissed is because you’re incompetent at bookkeeping.
When the applicant noted the respondent had failed to provide evidence substantiating that allegation, Mr Ottobre said:
I don’t need evidence if you’re making mistakes and not paying bills and not entering payments. So you’re incompetent.
It would have been preferable if the respondent had provided documentary evidence substantiating Mr Ottobre’s concerns about the applicant’s performance. The attempts to provide documentary evidence to substantiate the applicant’s performance issues were unsuccessful. However, notwithstanding those deficiencies in the respondent’s case, I do find Mr Ottobre’s unsubstantiated evidence persuasive.
Mr Ottobre said, without challenge, and I accept, that on his return from the USA, he received a number of requests from creditors for outstanding accounts to be paid and he found that embarrassing.
Mr Ottobre said, without challenge, that he knew the applicant was 66 years old when the respondent employed him. The respondent employed the applicant only a matter of weeks before he was dismissed. Moreover, Mr Ottobre said, without challenge, that the company accountant who replaced the applicant is 59 years old.
I accept this evidence. It suggests that Mt Ottobre is entirely content with employing accountants who are around retirement age.
Mr Ottobre categorically denied that age was a factor in his decision to dismiss the applicant. In view of all of the evidence in this case, I accept that denial. It seems to me that, rightly or wrongly, Mr Ottobre believed that the applicant was incompetent when Mr Ottobre decided on 9 November 2011 to dismiss the applicant. I do not accept that the applicant’s age was a factor in that decision. The applicant’s age was certainly not the “substantial and operative” reason for the applicant’s dismissal.
Unfortunately, the problems in this case appear to have stemmed from a lack of agreement within management about the applicant’s role. The applicant appears to have found many fundamental deficiencies with the respondent’s QuickBooks database that he thought needed to be fixed before the system could operate properly. The applicant said he spent a lot of time during office hours attending to “the massive amount of deferred maintenance on the database”.
The emails from Mr Clerk gave the applicant encouragement to fix at least some of the problems that he had found with the database.
The email from Mr Clerk on 8 November 2011 shows that the applicant was authorised to engage another person to help with the basic bookkeeping function. This indicates that the applicant was not getting through the basic bookkeeping work.
Mr Ottobre appears to have thought that the system was fine, and the applicant should have just paid the bills and processed the accounts. There was no independent, expert evidence that the respondent’s QuickBooks database had serious problems. It is difficult to believe that the respondent’s database became seriously deficient just when the applicant arrived. If there were problems with the database, they were probably not so severe as to prevent the basic bookkeeping work being done on a day to day basis, at least in the short term.
It seems that Mr Clerk supported the applicant fixing the database, but Mr Ottobre simply wanted the applicant to fulfil his basic bookkeeping function. It seems that the applicant was the victim of a difference of opinion between Mr Clerk, as general manager, and Mr Ottobre, as managing director.
In any event, for the reasons given above, the application filed on
21 December 2011 must be dismissed.
I certify that the preceding fifty-three (53) paragraphs are a true copy of the reasons for judgment of Riley FM
Date: 9 October 2012
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