Vink v LED Technologies Pty Ltd

Case [2013] FCA 443

FEDERAL COURT OF AUSTRALIA

Vink v LED Technologies Pty Ltd [2013] FCA 443

Citation: Vink v LED Technologies Pty Ltd [2013] FCA 443
Appeal from: Vink v LED Technologies Pty Ltd [2012] FMCA 917
Parties: MARTIN BERNARD VINK v LED TECHNOLOGIES PTY LTD (ACN 100 887 474)
File number: VID 858 of 2012
Judge: TRACEY J
Date of judgment: 16 May 2013
Catchwords: INDUSTRIAL LAW – Appeal from decision of Federal Magistrate dismissing application alleging contravention of general protection provision of Fair Work Act 2009 (Cth) – whether Federal Magistrate should have drawn inference that appellant was dismissed because of age – whether Jones v Dunkel inference could be drawn in relation to failure of respondent to call certain evidence – whether Federal Magistrate failed to appreciate potential for multiple substantial and operative reasons for adverse action being taken against employee  
Legislation: Fair Work Act 2009 (Cth) – ss 342, 346, 351, 360, 361, 539
Cases cited: Board of Bendigo Regional Institute of Technical and Further Education v Barclay (2012) 290 ALR 647 – applied
Fox v Percy (2003) 214 CLR 118 – applied
Vink v LED Technologies Pty Ltd [2012] FMCA 917 – affirmed
Vink v LED Technologies Pty Ltd (No 2) [2012] FMCA 1001 – cited
Date of hearing: 29 April 2013
Place: Melbourne
Division: GENERAL DIVISION
Category: Catchwords
Number of paragraphs: 57
Counsel for the Appellant: Mr J Twigg
Solicitor for the Appellant: Vadarlis & Associates
Counsel for the Respondent: Ms S Bingham
Solicitor for the Respondent: Griffith Hack Lawyers

IN THE FEDERAL COURT OF AUSTRALIA

VICTORIA DISTRICT REGISTRY

GENERAL DIVISION

VID 858 of 2012
ON APPEAL FROM THE FEDERAL CIRCUIT COURT OF AUSTRALIA
BETWEEN:

MARTIN BERNARD VINK
Appellant
AND:

LED TECHNOLOGIES PTY LTD (ACN 100 887 474)
Respondent

JUDGE:

TRACEY J

DATE OF ORDER:

16 MAY 2013

WHERE MADE:

MELBOURNE

THE COURT ORDERS THAT:

1.The appeal be dismissed with costs.

Note:Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011


IN THE FEDERAL COURT OF AUSTRALIA

VICTORIA DISTRICT REGISTRY

GENERAL DIVISION

VID 858 of 2012
ON APPEAL FROM THE FEDERAL CIRCUIT COURT OF AUSTRALIA
BETWEEN:

MARTIN BERNARD VINK
Appellant
AND:

LED TECHNOLOGIES PTY LTD (ACN 100 887 474)
Respondent

JUDGE:

TRACEY J

DATE:

16 MAY 2013

PLACE:

MELBOURNE

REASONS FOR JUDGMENT

  1. Mr Martin Vink was employed by the respondent (“LED”) for some months in 2011.  His services were terminated.  He alleged that this had occurred because of his age.  Mr Vink lodged a claim in the Federal Magistrates Court (now the Federal Circuit Court of Australia) alleging that his dismissal involved a contravention of a general protection provision of the Fair Work Act 2009 (Cth) (“the FW Act”). A Federal Magistrate (as she then was) dismissed the application: see Vink v LED Technologies Pty Ltd [2012] FMCA 917. The Federal Magistrate subsequently dismissed an application by LED for an order that Mr Vink pay its costs of his application: see Vink v LED Technologies Pty Ltd (No 2) [2012]…

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AGLC
Vink v LED Technologies Pty Ltd [2013] FCA 443
Case
[2013] FCA 443
Decision Date

CaseChat Overview and Summary

The case of Vink v LED Technologies Pty Ltd involved Mr Martin Vink, who was employed by LED Technologies Pty Ltd for a brief period in 2011. Following the termination of his employment, Mr Vink filed a claim in the Federal Circuit Court of Australia, asserting that his dismissal contravened the general protection provisions of the Fair Work Act 2009 (Cth). The Federal Magistrate dismissed the application, a decision that Mr Vink now appeals to the court.

The primary legal issues before the court were whether the Federal Magistrate should have inferred that Mr Vink was dismissed because of his age and whether a Jones v Dunkel inference could be drawn from LED's failure to call certain evidence. Additionally, the court had to determine whether the Federal Magistrate failed to appreciate the potential for multiple substantial and operative reasons for the adverse action taken against Mr Vink.

The court considered the evidence presented by both parties and the legal principles outlined in Board of Bendigo Regional Institute of Technical and Further Education v Barclay. It was noted that the Federal Magistrate had accepted that LED wanted a "youthful and vibrant" work atmosphere, which Mr Vink argued should lead to a compelling inference of age discrimination. However, the court found that the Federal Magistrate's conclusion that Mr Vink's age was not the substantial and operative reason for his dismissal was supported by the evidence and the overall facts of the case. Furthermore, the court found no basis for drawing a Jones v Dunkel inference due to LED's failure to call certain witnesses. The appeal was ultimately dismissed with costs.

This case highlights the importance of assessing all evidence and circumstances when determining whether an employer has contravened the protective provisions of the Fair Work Act. The court's decision reinforces the need for employers to provide reliable and substantial evidence to support their reasons for adverse action taken against employees.

Orders

Orders of the court

1. The appeal be dismissed with costs.

Note: Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011

Background

Background to the litigation

Mr Martin Vink was employed by the respondent (“LED”) for some months in 2011. His services were terminated. He alleged that this had occurred because of his age. Mr Vink lodged a claim in the Federal Magistrates Court (now the Federal Circuit Court of Australia) alleging that his dismissal involved a contravention of a general protection provision of the Fair Work Act 2009 (Cth) (“the FW Act”). A Federal Magistrate (as she then was) dismissed the application: see Vink v LED Technologies Pty Ltd [2012] FMCA 917. The Federal Magistrate subsequently dismissed an application by LED for an order that Mr Vink pay its costs of his application: see Vink v LED Technologies Pty Ltd (No 2) [2012] FMCA 1001. Mr Vink now appeals to this Court from the Federal Magistrate’s principal decision.THE FACTUAL BACKGROUND Mr Vink is a qualified accountant. At relevant times he was 66 and 67 years old. In June 2011, LED (using the services of a recruitment agency) advertised the position of company accountant. Mr Vink applied. In the course of August 2011 Mr Vink was interviewed twice by officers of the company. The second interview was conducted by the then general manager, Mr David Clerk. On 25 August 2011 Mr Vink was offered and accepted employment with LED. His employment had been authorised by Mr Tony Ottobre, the managing director of LED, who was in the United States at the time at which Mr Vink was engaged. Between 31 August and 3 October 2011, Mr Vink worked on one day per week for LED. Towards the end of October 2011 Mr Ottobre returned from the United States. Shortly afterwards, according to Mr Vink, Mr Ottobre accused him (Mr Vink) of not answering Mr Ottobre’s e-mails, of sabotaging LED’s e-mail system and of not paying certain of Mr Ottobre’s personal bills. Mr Ottobre also refused a request by Mr Vink to be given a key to LED’s premises. Mr Vink considered that these accusations were unwarranted and he was bemused by the refusal to give him a key. On 9 November 2011 Mr Clerk accused Mr Vink of causing Mr Ottobre’s personal telephone to be disconnected. On the same day Mr Ottobre’s daughter accused Mr Vink of having done something to the company’s computer because it was not working as quickly as it had done previously. On 10 November 2011 Mr Clerk dismissed the applicant. Mr Vink deposed that, during the interview with Mr Clerk in which he was advised of the termination of his employment, Mr Clerk had said that:·Mr Ottobre accepted that Mr Vink was not responsible for Mr Ottobre’s telephone having been disconnected;·Mr Ottobre and Mr Clerk had decided the previous evening that Mr Vink was “the wrong fit” for LED;·Mr Ottobre wanted a “youthful and vibrant” work atmosphere; and·Mr Ottobre wanted his daughter to take the applicant’s position. Mr Vink apprehended that he was being dismissed because of his age. He told Mr Clerk that LED could not dismiss him for that reason. Mr Clerk was said to have responded that an employer was free to dismiss an employee for any reason during the first three months of the employee’s employment.

Evidence

Evidence Before The Court

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Decision

Reasons for decision

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Ratio Decidendi

Legal Principle Established

The second ground alleged that the Federal Magistrate had misconstrued s 361(1) of the FW Act when she said that Mr Vink’s age was certainly not the “substantial and operative” reason for his dismissal. CONSIDERATIONThe first ground Mr Vink’s first ground was founded on Mr Clerk’s statement that Mr Ottobre wanted a vibrant and youthful culture in the company. The Federal Magistrate had accepted that such a statement had been made by Mr Clerk. As a result, it was submitted, a “compelling inference” should have been drawn that Mr Vink had been dismissed because of his age. No other evidence called by LED supported the drawing of any contrary inference. Such evidence as had been given by Mr Ottobre as to his reasons for dismissing Mr Vink was “glaringly improbable”. Mr Vink pointed to the failure of LED to produce documentary evidence to support the allegation of incompetence, the withdrawal of some of the bases originally relied on by Mr Ottobre to support these allegations and there being “insufficient evidence” from which it might be inferred that Mr Ottobre’s asserted reason played any part in his decision. Mr Vink also relied on the failure of LED to call Mr Clerk, Mr Groves or the receptionist who had sent the e-mail to Mr Clerk on 3 November 2011. He submitted that a Jones v Dunkel inference could be drawn in relation to Mr Clerk’s absence. In Board of Bendigo Regional Institute of Technical and Further Education v Barclay (2012) 290 ALR 647 the High Court considered the manner in which courts should approach cases in which an applicant claims that one of the protective provisions in Part 3-1 of the FW Act has been contravened “because” the respondent has acted for a proscribed reason. The reverse onus provisions of s 361(1) govern that approach. The protective provision which was considered in Barclay was s 346 of the FW Act. That provision prevented adverse action being taken against employees because they were officers or members of a union or were engaged in certain union-related activities. In their joint judgment (at [127]) Gummow and Hayne JJ said that:“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 among many reasons, for adverse action to be taken against that employee. In assessing the evidence led 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.”French CJ and Crennan J expressed similar views (at [45]). Their Honours said that:“This question is one of fact, which must be answered in the light of all the factsestablished 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.”