Drummond v Telstra Corporation Limited

Drummond v Telstra Corporation Limited - [2009] VCAT 2411 - VCAT 2009 case summary — Zoe

[6]

Mr Drummond applied to work at Telstra as a telephone sales consultant in about September of 2007. Telstra does not directly employ any of its sales consultants. Each successful applicant must be employed by an outside agency and then contracted to work for Telstra for at least the initial period of induction and training, and then indefinitely unless offered a permanent Telstra position.
The person with whom Mr Drummond made contact at the time of making the initial application gave him the names of two outside agencies, one of which was a company by the name of Kelly Services (Australia) Ltd (in these reasons I will refer to this company as Kelly). Mr Drummond contacted Kelly, signed a contract of employment with that company, and was then assigned by that company to work at Telstra Corporation Ltd on a contract basis.
New sales consultants at Telstra need to undertake an induction program. At the time of Mr Drummond's successful application, the induction program spanned a period of four weeks. He commenced the induction program on 24 September 2007 at Telstra's offices at Burwood together with 11 other trainees. This group was nicknamed the 'Smoking Aces' group.
The period of training was to be supervised by a full-time employee of Telstra, Nicole Hicks, as training manager. Following the four week completion of training it was expected that the group would be handed over to a person to be nominated as its sales training leader. In the case of the Smoking Aces, the sales training leader was to be Marie Dermatis, another Telstra employee.
In fact, Mr Drummond did not complete the four weeks of training. Just before the end of the third week, on 15 October 2007, he resigned.
At the time of these events Drummond was the oldest trainee at 57 and the other trainees ranged in age from 18 to 35, with the preponderance of trainees being aged in their late twenties. No admissible evidence was produced in this hearing as to the relative ages of Telstra call centre operators, or of Telstra employees overall, but for the purpose of these reasons I accept that Drummond was significantly older than most Telstra call centre employees.
Mr Drummond says that he was unfairly treated whilst on the training program. He says that the treatment which was meted out to him over that period occurred because Telstra, and in particular Nicole Hicks, did not like him and was intent on getting rid of him because of his age.
It was common ground that on 15 October 2007, the start of the third week of the training program, Nicole Hicks and Marie Dermatis contacted Katherine Bishop, the business manager for Kelly responsible for placement of the Kelly employees at Telstra, and ultimately a meeting took place between Hicks, Dermatis and Bishop on the morning of 16 October 2007. This meeting took place at Telstra's offices and at the meeting Hicks and Dermatis outlined to Bishop their concerns about Drummond.
Immediately after this meeting Bishop met with Mr Drummond and commenced discussion with him of the concerns raised by Hicks and Dermatis, having recorded those concerns on a document produced in evidence before me which was part of a performance improvement plan procedure utilised by Kelly in disciplining staff.
During the meeting between Drummond and Bishop, Drummond resigned his position.
Mr Drummond says that by the time of that meeting, Hicks and Dermatis had instructed Bishop that they wished to get rid of him. In his view the administration of the performance improvement plan was a device used to effect his removal because of his age, and his resignation was the inevitable consequence of the discrimination to which he was subjected.

[14]

The only part of s 15 which potentially covers the facts alleged in this case is s 15 (d) which prohibits the subjecting of a contract worker to "any other detriment".
Counsel for Telstra submitted that the fundamental problem with Mr Drummond's claim was that he could not, even if his allegations were proved, establish that he had been subjected to any detriment at all because he had in fact resigned his position voluntarily.
This argument had also been pressed by Telstra in its s 75 application before Deputy President Macnamara. In rejecting that argument, the learned Deputy President expressed the view that, depending on the facts found proved at trial, detriment might be established in the form of a "black mark" on his employment record as a result of the performance improvement plan process, or the experience of humiliation or unpleasantness during the performance improvement plan interview.
I agree that Drummond's resignation does not prevent him from claiming detriment in the way suggested by Deputy President Macnamara. Although counsel for Telstra reminded me that the discrimination to be proved must be a matter of substance, and not an ephemeral or inconsequential matter, I take the view that for a person in the position of Mr Drummond to be challenged as to his capacity to perform the work required of him, or face the experience of a confronting performance interview, is capable of being characterised as a serious and substantial detriment.
Further, although Drummond agrees that he did resign, his evidence was that he formed the view that he was about to be sacked and decided to forestall the sacking by resigning. He viewed his action in doing so as directly attributable to his treatment by Nicole Hicks. Had he been able to establish these facts, I have no doubt that the requirement for detriment would have been made out.
I have, however, no need to consider this further. This is because I have decided that Mr Drummond has not proved the happening of the events on which he relies to prove that he has been subjected to less favourable treatment by any Telstra employee.

[15]

A person bringing a complaint of discrimination has the obligation to prove all of the elements of that complaint. It is not enough to simply allege that a person has acted in a discriminatory manner without proof. It is not possible for a complainant to succeed just because that complainant has concluded without evidence that he or she was treated unfavourably because of an attribute.
Although the burden of proof is the civil standard - whether it is more probable than not that the facts on which the complainant relies are true - it is still up to the complainant to persuade the Tribunal that all of the elements which constitute illegal discrimination are made out.
It is also, however, clear that in some cases direct proof may be difficult to establish. As has been said many times, the motivation for discriminatory treatment can be hard to establish, and motivation is in any event not a required element under the Act. In assessing whether direct discrimination has occurred, it is irrelevant whether the respondent is aware of the discrimination or considers the treatment less favourable. It is also irrelevant whether or not the attribute is the only or dominant reason for the treatment, as long as it is a substantial reason.
Often even though direct evidence is not available which shows the reason for the treatment alleged, a complainant will seek to have the Tribunal draw inferences from established facts which he or she says reveal, even in the face of denials by a respondent, that it is more probable than not that a substantial reason for discriminatory treatment of the complainant by a respondent is the attribute relied upon by the respondent.
Here, Drummond relies on direct statements by Nicole Hicks that he was unsuitable for employment by Telstra because of his age. He also wishes me to draw the inference from his description of the behaviour to which he was subjected without just cause, that the treatment meted out to him was substantially because of his age.
Each of the statements alleged to have been made by Nicole Hicks and course of conduct which the complainant describes are denied. Mr Drummond's case depends upon my accepting his version of events and rejecting the evidence given by Telstra witnesses, before drawing the inferences he says are irresistible from those facts.

[16]

Mr Drummond gave sworn evidence that Hicks said outright to him that he was too old for the job.
This is the evidence he gave of those statements. He said that, as part of a team-building exercise, Nicole Hicks required the group to engage in various quizzes. He said that he complained to her about the subject matter of those quizzes because he thought the subject matter was not matters of general interest.
He said that in response Nicole Hicks told him that his performance in the quizzes demonstrated that he was too old and that he was not blending in with the group because of his age.
Mr Drummond's evidence about the exact words used by Hicks was vague. The detail of any conversation to this effect is not spelled out clearly in either the amended particulars of demand or Mr Drummond's witness statement.
The only detail about any such conversation was extracted from him in cross-examination, and was given haltingly and inconsistently. As far as I can summarise his evidence, it was that there were at least two occasions on which these statements were made.
He said the first took place on an occasion when he had arrived at work late because he had been injured. On that occasion Hicks was standing with him in a hallway or in the training room itself and she said to him directly that because of his age he was not suitable to undertake the work as a training consultant.
He gave evidence that on the second occasion the conversation took place definitely in the hallway next to the training room when she came up to him and said that he was not suitable and that that conversation occurred in the context of his criticisms of various quiz questions that he was complaining about.
He also gave evidence that there may have been a third conversation in which the same suggestion was made to him -viz that he was unsuitable because he was too old.
Drummond's evidence of these conversations was confused and inconsistent. It did not have the ring of truth. It contrasted sharply with the direct and emphatic evidence of Hicks that no such conversations had taken place.
Drummond's allegations about these conversations were raised at a very late stage. They were not mentioned in the documents he originally prepared for submission to the Equal Opportunity Commission or to this Tribunal. In a claim stretching back to March of 2008, the first mention of these matters is in his amended Particulars of Demand filed in March of this year, and witness statement filed in August of this year. His explanation for the omission - that he did not have access to his notes at the time- seemed to me to be contrived.
I do not accept Drummond's evidence that the conversations he detailed took place. If such blatant remarks had been made to him, providing clear evidence of age discrimination, it is unlikely that he would not have referred to them in his statement of complaint to the Commission or his original statement of complaint to this Tribunal.

[17]

Drummond says that in addition to being satisfied that explicit statements were made by Hicks about his unsuitability because of his age, I should draw inferences from the behaviour of Hicks towards him that a substantial reason for that behaviour towards him was his age.
He says that from the commencement of the course it was apparent to him that Nicole Hicks did not like him. He said this was apparent because from the very first day she directed him to sit next to her rather than in another seat that he had chosen for himself.
He said that Hicks wrote the ages of every person in the group on a piece of paper at the commencement of the training and that I should see this as confirmation that she regarded age as an important factor to be taken into account in assessing trainees.
Drummond said that Hicks did not assist him at all in completing various computer tasks. He said she was antagonistic towards him. He said that his level of expertise in the computer modules which were completed was very high, far higher than other members of the group, and yet no allowance was made by her for his excellent work despite his having completed several of the modules when in pain after an injury.
He relied on computer records of completion of training modules which showed he had obtained very high marks in training exercises whereas some other of the group had failed. He pointed out that two brothers in the Smoking Aces group had obtained identical scores and suggested I should deduce from that that they had cheated. He suggested I should be satisfied that his performance in all of the tasks set by Hicks was well above average, and that he showed commitment to the job by continuing to work even after an injury.
Drummond asks me to accept that he fulfilled the requirements of the position, and says that there could therefore have been no reason at all for Hicks to have shown such antagonism towards him except for his age.
Drummond did not allege that Dermatis or any other Telstra employee apart from Hicks had ever made any comment to him as to his age or suggested that his age was a handicap in performing the training program. He did not allege that any other Telstra employee had treated him in a manner suggestive of less favourable treatment, or had engaged on any course of conduct suggestive of antipathy towards him because of his age.
From his particulars of demand and witness statement I had formed the impression that Drummond wished to use the type of quiz questions chosen as an indication that the training was slanted towards a young age group, and thus was a means of emphasising the inappropriateness of a person of his age to be working with the group. However, in giving evidence before me, Drummond did not complain of the quiz. He said the type of questions "did not faze me one way or the other" and that his only complaint to Hicks about the questions was that they were not "general knowledge" questions.

[18]

Nicole Hicks and Marie Dermatis gave evidence before me. The thrust of that evidence was that they considered Drummond to be an unsatisfactory worker because of his behaviour, and that age played no part in their assessments of him or behaviour towards him.
Hicks outlined various matters about Mr Drummond's behaviour which were of concern to her and which led to her contacting Katherine Bishop.
She described Drummond as disorganised. She gave evidence that he often lost his log-in and password details for his computer and that his workstation was very messy.
Hicks also gave evidence that he constantly was careless with his log-in and password details and locked himself out of the system four days in a row as a result. She said that his desk was so untidy that he could never find where he had written the information down. He took longer than anyone else to log on in the morning and was unwilling to ask for help when he needed it.
She gave evidence that he did not grasp the content of what she was trying to teach him. She could see from her observation that he was unable to execute the computer modules by himself and was enlisting the help of other trainees to finish them. He was only able to receive high marks because of the assistance of a previous Telstra employee, Andrew Pei.
She said she could see from his reactions that he was not grasping the content of what she was teaching him.
Further, she described him as very loud and distracting to the group and displaying a lack of aptitude and understanding in role plays she administered to the group.
Hicks gave evidence of various examples of Drummond's disruptive behaviour within the group. She said that he would often talk about unrelated things or tell jokes rather than keep on track and get the work done. She described him objecting to and refusing to participate in the quizzes which she organised for the group as a group bonding exercise.
She further said that in her view his language at work was inappropriate, he having once referred to two of the female trainees as 'fillies'.
The aspect of her evidence which Drummond most strongly challenged was her evidence that he was often late to work or not at his desk when required.
Dermatis and Hicks both gave evidence that time management was of the highest importance in call centre work. One of the most important requirements of the job was punctuality and it was Hicks' task to impress upon the trainees that they must be punctual and must account for all of their hours during the day, as all of their functions as call centre operators were monitored in one-minute units and planned in advance, and every minute of every shift must be accounted for.
Drummond agreed that this was so, and that he had been told at the time of obtaining the position that punctuality and the need to account for time on a minute by minute basis was considered crucial.
However, Drummond was emphatic that he had been late for work only twice, and on each occasion the lateness was unavoidable. One instance was, he said, caused by a traffic accident, and the other because he had been injured. He produced a medical certificate for the occasion on which he was injured. He emphasised that he had wished to continue with the training program despite his injury, even when Hicks had offered to place him in a later course to give him the opportunity to recover from his injury. He asked me to use this evidence to show that he was committed to completing the training program.
Hicks' evidence was that he was late on at least three or four occasions and that although on one of those occasions she accepted that he had a reasonable excuse in that he had been injured, there were several other occasions that she recalled on which he was late without an excuse.
She said he was also often absent from his desk during the day without having told anyone where he was. She agreed that problems with his lateness in arriving at work improved over the course of the three weeks training, but maintained that his unexplained absences from his workstation during the day continued.
Hicks' evidence was that it was her concern about the issues which I have identified above, and not to any concern about his age, which led her to discuss Drummond's progress with Marie Dermatis, and then after discussion with Marie Dermatis, to have determined with her to contact Kelly.
Almost all of the evidence as to Mr Drummond's unsatisfactory behaviour was given by Nicole Hicks. It was, however, corroborated in some respects by evidence by Marie Dermatis.
Although Dermatis had not yet taken over her role as sales training leader for the Smoking Aces, she gave evidence that she did from time to time sit in the same geographic location as the group.
She gave evidence of a particular incident which she observed. On that occasion Mr Drummond was paired with another trainee by the name of Jason Maiale. She asked Maiale where Mr Drummond was, as he was absent from his desk. Mr Maiale responded that he did not know where Mr Drummond was but that she should be careful. In explanation he said that he had heard Mr Drummond make some very inappropriate comments, referring to herself and to women in general, although he did not tell her the details.
Dermatis gave evidence that later in the day she found Mr Drummond away from his desk, leaning up against some filing cabinets. When she challenged Mr Drummond as to why he was standing there rather than working, he said words to the effect: "I've been to the toilet. Can't I go to the toilet? Or do you monitor that as well?" She gave evidence that he was very "quick" with those words and she was not impressed by the attitude which he displayed to her in answer to her question.
Dermatis also said, without providing any detail, that some of the concerns identified by Nicole to her about Mr Drummond coincided with her own experience of him from this time in the training room environment.
As I have said, all of these matters were denied vehemently by Mr Drummond. He suggested that I should find all of these allegations to be completely baseless and that I should infer from the making of these baseless allegations that Hicks and Dermatis were attempting to disguise the real reason for hostility towards him, which was his age. He said that I should be satisfied that there could have been no other reason for the treatment which he described than antagonism based on his age.
Drummond described Hicks' evidence as a "total creation of fiction", an "invention" and the evidence of Hicks and Dermatis as a "fabrication to protect their rear ends".
I do not agree. The evidence of both Dermatis and Hicks was consistent and credible and I accept it.
I accept the evidence of Hicks that she had significant concerns about Mr Drummond's capacity to perform the requirements of the role for which he had been employed, and that these concerns were not related to his age, but to the factors identified in her evidence.

[19]

Nicole Hicks had a preliminary discussion with another employee of Kelly, Jeremy Collard, before discussing her concerns about Drummond's performance with Bishop by telephone on 15 October 2007. Bishop gave evidence that Hicks had identified those concerns in that phone call as his "negative attitude and attendance issues". She said Hicks did not mention his age.
Bishop made arrangements to come to the Telstra site at which Drummond was working the next day to implement the performance improvement plan.
She gave evidence that on the 16 October she arrived at the call centre and first met with Hicks and Dermatis and took note of their concerns. She then discussed those concerns with Mr Drummond.
She made notes of the criticisms of Drummond made by Hicks and Dermatis on the process improvement plan which was exhibited to her affidavit. The notes read verbatim as follows
"NOT FOLLOWING INSTRUCTIONS e.g. activity, learning modules NEGATIVE ATTITUDE - blame excuse, went missing off the floor- team activities, not wanting to contribute INAPPROPRIATE JOKES AND CONVERSATION LATE - back from breaks BEHIND IN COURSEWORK"
There is a note in the margin, also in Bishop's handwriting, referring to the entry - "late back from breaks", which reads "This has improved since speaking with Nicole".
Her evidence was that the purpose of her discussion with Drummond was to ventilate those concerns and to try to resolve those problems, or at least provide warning to Drummond that if the problems remained unresolved his continued placement with Telstra may be in jeopardy.
During her discussion with him, Mr Drummond denied the criticisms which she relayed to him. She said that the matter which he was most keen to discuss was the allegation that he had been late back from breaks. She described this issue as a "sticking point" for Drummond, who said he was on crutches and needed to get up regularly and took longer than normal to return from the toilet.
Her record of her discussion with Drummond is also on the form. It is as follows:

[22]

She told him that this was his choice but that she would continue with a performance improvement plan if he wanted to stay on the assignment at Telstra. Mr Drummond asked for ten minutes to consider this, and left.
Mr Drummond returned after ten minutes and told Bishop that he was resigning. He said words to the effect: "If it is not working, you move on. I've been married twice before so I know".
Because Mr Drummond announced his intention to resign, Bishop did not continue with the performance improvement plan process and the document remained incomplete.
Bishop said she received a telephone call from Drummond later in the day in which he continued to press his argument that he had been unfairly accused of taking long breaks. She explained to him that Telstra's concern was not that he took breaks, but that he did not let others know where he was or what he was doing when away from his seat.
She gave clear evidence that at no time had Hicks or any other Telstra staff member mentioned Drummond's age or suggested that he was too old for the role. Further, she gave clear evidence that Drummond at no time in any conversation with her suggested that he felt that he had been targeted or unfairly treated because of his age.
Mr Drummond substantially agrees with the evidence of Bishop as to what was said during her interview with him, as I have outlined it above. In particular, he agrees that he decided to resign as she describes.
As I understood his evidence, and his cross-examination of Bishop, he makes no complaint of discrimination based on Bishop's behaviour in the interview.
His complaint about her evidence was that he did not believe that the criticisms which she had relayed to him were accurate, and that she did not personally investigate the merits of those criticisms during the interview process. In particular, he asked her to locate the attendance record so he could prove that the allegations against him of lateness were wrong, and she had refused to do so.
He believed that the performance improvement process interview was a sham and that, despite her denials, Bishop had already been given instructions from Telstra to sack him.
Mr Drummond suggested that an email from Bishop which was discovered by Telstra late in the proceeding, revealed that Bishop had been instructed by Telstra to sack him.
In this email, apparently compiled by Lucas Winton, Human resources adviser to Kelly, on information provided to him by Bishop, the following appears:

[28]

Mr Drummond submitted that I should be satisfied on the facts of this case that Telstra had not cooperated in disclosing all of the relevant documents in this case.
This point was made extremely strongly in relation to one particular document - an attendance record described by Nicole Hicks in her evidence. Mr Drummond said that this document was crucial in establishing whether or not he was in fact late on the occasions claimed by Ms Hicks and therefore whether or not her evidence should be believed or was a fabrication.
During his interview with Bishop on 16 October, he had challenged her to retrieve this document from Hicks so he could prove to her that the allegations of lateness made against him by Hicks were untrue. Bishop had refused to do so.
Mr Drummond had sent a letter to Kelly on 17 October 2007, the day after his resignation, requiring a copy of the document.
Nicole Hicks gave evidence that she had not seen that letter, nor known of that request until early in 2009. She said that the attendance record was not a formal document. It was simply a record in a spirex notebook which was generated by her only for the purpose of the four week training program for the Smoking Aces group. She required each member of the group to enter into the book their attendance and leaving times during the training session so as to emphasise the importance of punctuality and accounting for time in a call centre environment.
Hicks said that at the conclusion of the training session she discarded the section of her notebook containing these entries, either by tearing the section out of the book, or by discarding the book completely. She said that she had no reason to do anything else as it was no part of her function to maintain permanent records of staff attendances.
Mr Drummond suggested that the attendance roll had been deliberately destroyed by Telstra so that vital evidence in this case would be unavailable.
He referred me to various cases in which courts have dealt with documents which have been destroyed. One of these cases was a freedom of information case in the Federal Court of Chu v Telstra [2005] FLCA 1730. He noted that in this case Telstra had also been accused of destroying documents and asked me to infer that because Telstra had been accused of destroying documents in another case, its corporate culture allowed for the destruction of evidence.
He also referred me to a High Court case of Allen v Tobias [1958] HCA 13; [1958] 98 CLR 367. In that case a person had deliberately destroyed exhibits in a case. He referred me to a passage in that case as follows:

At a glance

Court

Decision date

Source

Judgment (40 paragraphs)

Drummond v Telstra Corporation Limited (Anti-Discrimination) [2009] VCAT 2411 (13 November 2009)

Parties