Vink v LED Technologies Pty Ltd

[2012] FMCA 917

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

1. 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

1. 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.

2. 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”. 

3. 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?

4. 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.

5. 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.

6. 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.

7. 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…