McEvoy v Acorn Stairlifts Pty Ltd - [2017] NSWCATAD 273 - NSWCATAD 2017 case summary — Zoe

NSWNSWCATAD

McEvoy v Acorn Stairlifts Pty Ltd

[2017] NSWCATAD 273

NCAT Administrative and Equal Opportunity|2017-05-31

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At a glance

Source facts

Court

NCAT Administrative and Equal Opportunity

Decision date

2017-05-31

Catchwords

HUMAN RIGHTS - discrimination - less favourable treatment - causation - assessment of less favourable where no actual comparator

Source

Original judgment source is linked above.

Catchwords

HUMAN RIGHTS - discrimination - less favourable treatment - causation - assessment of less favourable where no actual comparator

Judgment (25 paragraphs)

[1]

E Raper (Counsel) DL Piper (Solicitors) File Number(s): 2016/00377940

[2]

Reasons FOR DECISION

Sixteen weeks after starting with Acorn Stairlifts Pty Ltd, then 62-year-old Fenton McEvoy was told his employment had been terminated. He claims that Acorn National Sales Manager, Laura Kelly, told him that his employment was terminated because he had a bad back, bad hearing and was too old. Acorn denies this allegation and claims that Mr McEvoy's employment was terminated because of issues relating to his work performance.
Acorn manufactures and installs stair lifts. Mr McEvoy was employed by Acorn in the role of a telephone sales advisor. In that role, he answered telephone enquiries from prospective customers and arranged appointments for a member of Acorn's sales team to visit the customer and provide a quotation.
Twelve months after his employment with Acorn was terminated Mr McEvoy made a complaint to the President of the Anti-Discrimination Board (respectively "the President" and "the Board"), alleging unlawful age and disability discrimination in contravention of the Anti-Discrimination Act 1977 (NSW) (the Act). The President referred Mr McEvoy's complaint to the NSW Civil and Administrative Tribunal (NCAT) for determination.

[3]

Statutory framework

The Act makes it unlawful for an employer to discriminate against an employee on the ground of age and/or disability by dismissing an employee: ss 49ZYB and 49(2)(c).
The form of discrimination alleged by Mr McEvoy is commonly termed "direct discrimination". Section 48ZYA(1)(a) defines direct discrimination on the ground of age to mean: 49ZYA What constitutes discrimination on the ground of age (1) A person ("the perpetrator") discriminates against another person ("the aggrieved person") on the ground of age if the perpetrator: (a) on the ground of the aggrieved person's age …, treats the aggrieved person less favourably than in the same circumstances, or in circumstances which are not materially different, the perpetrator treats or would treat a person who is not of that age or age group … … (2) For the purposes of subsection (1)(a), something is done on the ground of a person's age if it is done on the ground of the person's age or age group, a characteristic that appertains generally to persons who are that age or age group or a characteristic that is generally imputed to persons who are of that age or age group.
Section 49B(1)(a) defines direct discrimination on the ground of disability and is in similar terms: 49B What constitutes discrimination on the ground of disability (1) A person ("the perpetrator") discriminates against another person ( "the aggrieved person") on the ground of disability if the perpetrator: (a) on the ground of the aggrieved person's disability …, treats the aggrieved person less favourably than in the same circumstances, or in circumstances which are not materially different, the perpetrator treats or would treat a person who does not have that disability … … (2) For the purposes of subsection (1) (a), something is done on the ground of a person's disability if it is done on the ground of the person's disability, a characteristic that appertains generally to persons who have that disability or a characteristic that is generally imputed to persons who have that disability. … (4) A reference in this section to persons who have a disability ("the particular disability") is a reference to persons who have the particular disability or who have a disability that is substantially the same as the particular disability.
The Act contains a broad definition of disability: 49A Disability includes past, future and presumed disability A reference in this Part to a person's disability is a reference to a disability: (a) that a person has, or (b) that a person is thought to have (whether or not the person in fact has the disability), or (c) that a person had in the past, or is thought to have had in the past (whether or not the person in fact had the disability), or (d) that a person will have in the future, or that it is thought a person will have in the future (whether or not the person in fact will have the disability).
The Act provides that if an act is done for two or more reasons, and one of the reasons consists of unlawful discrimination under the Act against a person (whether or not it is the dominant or a substantial reason for doing the act), then, for the purposes of this Act the act is taken to be done for that reason: s 4A of the Act.

[6]

The meeting between Ms Kelly and Mr McEvoy

On 28 February 2014 Ms Kelly met with Mr McEvoy and told him that his employment was terminated. What Ms Kelly said at that meeting is in dispute. In a statement given to the Board on 27 February 2015, Mr McEvoy gave this account of that meeting: LK: "I've just gotten a new job here and now I can hire and fire people. I've decided to let you go because I feel you don't fit the culture here." FM: "What do you mean by 'I don't fit the culture'?" LK: "I don't want to explain it any further." FM: "Look I need to know. Just tell me." LK: "All right then. Just look around you. What do you think the average age of the people here is?" FM: "I'm not sure probably around 25-30 I guess." LK: "You're 61." FM: "Actually I'm 62." LK: "That's even worse." FM: "What do you mean by 'worse'?" LK: "You know exactly what I'm talking about. Look that's not the only problem. You have a broken back." LK: "I ruptured a disk in my spine in January but I don't have a broken back. That's ridiculous. I gave Margaret [the Office Manager] a Medical Certificate. My doctor said in the Certificate that I was OK to return to work." LK: "I don't believe you." FM: "What do you mean you don't believe me?" LK: "You've been hobbling around the office, limping and taking pain killers since you got back." FM: "Yes it gets a bit sore, sometimes uncomfortable and that's why I limp a bit, and I take some Panadol occasionally, but my job is working on the phone all day, not lifting heavy objects. I only limp when walking across the office to the bathroom or the kitchen. It doesn't affect my job on the phone." LK: "I don't believe you." LK "You're also deaf." FM: "What do you mean". LK: "When I yell at you across the office you never answer me." FM: "I hear every word. I don't respond to being yelled at." LK: "But I have stood next to you and even had to swear at you and you don't respond." FM: "I just told you I don't respond to being yelled at and that filthy language. You could always phone me on my extension and talk normally, or send me an email which is office protocol. And anyway you were never my boss. The fact is I could hear you perfectly well. I wear hearing aids." LK: "I don't believe you. You're not wearing them now." FM: "I am wearing them right now." LK: "No you're not." I then took both hearing aids out of my left and right ears, placed them in my palm, and showed them to her. LK: "What are they?" FM: "They're hearing aids." LK: "They're just little bits of plastic, they wouldn't do anything. Hearing aids are big things that stick out of your ear with a wire or something going down to your shirt." FM: "These are the latest and they contain mini-computers so I can hear everything perfectly clearly." LK: "I don't believe you." LK: "Look, I want you to know I don't believe anything you've said. It changes nothing. For all these reasons I've decided to let you go." FM: "But I have the best sales figures in this place for the last month or so." LK: "I don't care about the sales, and I haven't even looked at your sales figures. It's got nothing to do with your sales figures." FM: "Well what is it then?" LK: "I've already told you. You don't fit the culture here, and I don't believe that with your back problem and poor hearing you can continue working here and that's all there is to it. At your age those conditions can only get worse, and besides we can't have people like you hobbling all over the office. Besides if you really want to know, the reality is we think you're going to turn around and use your back for a workers comp claim." FM: "My back? You can't be serious. I told Margaret I injured myself away from work at the local gym and it was my own fault. It's got nothing to do with work and I told Margaret and Mike it had nothing to do with work [Mike was the Sales Manager and my immediate boss]. I've never even mentioned any workers comp claim and I certainly won't be making any workers comp claim." LK: "Well I don't believe you and I don't trust you. We think you're going to turn this into a claim just to get money." FM: "That's totally absurd, I would never do that. I've never put in any claim and never will." LK: "That's what you say now. I'm not giving you the chance. You're leaving today. Just grab your things from your desk and get out now." FM: "For the record I don't agree with anything you've said. It's all nonsense and false. By the way will you be giving me a written work reference?" LK: "Don't worry Fentin I'll give you a glowing written reference which will help you get another job." I was in a state of shock. I then stood up and went to the door and opened it and left the room.
The Board invited Acorn to comment on Mr McEvoy's account of his meeting with Ms Kelly. In a letter dated 22 May 2015, Solicitors for Acorn wrote that Acorn was unable to comment on Mr McEvoy's account as Ms Kelly was "on leave of absence due to unfitness for work". The Solicitors wrote that Mr McEvoy was dismissed from his employment due to "on-going problems with his performance" but did not elaborate. In addition, the Solicitors wrote that Acorn denied "the allegation that rude jokes, swearing and filthy language were commonplace in its workplace".
In a letter in response, Mr McEvoy wrote that he had "never performed poorly in the job, and was not told that by Ms Laura Kelly at the time of the termination, or by anyone else at the time".

[7]

Acorn dismisses Ian Wright

In support of his complaint, Mr McEvoy provided the Board with a statement prepared by former Acorn employee, Ian Wright.
Mr Wright commenced with Acorn shortly before Mr McEvoy and was terminated on the same day as Mr McEvoy. Before joining Acorn, Messrs Wright and McEvoy worked together at telemarketing company, Forest Marketing. According to Mr Wright, Mr McEvoy was "quickly recognised by Forest Marketing as an outstanding employee" and given the task of taking on some of Forest's "more important and challenging campaigns". Based on Mr Wright's recommendation, Mr Waisome invited Mr McEvoy to join Acorn.
Mr Wright confirmed Mr McEvoy's account that rude jokes, swearing and filthy language were commonplace in the workplace. He described the Acorn workplace as "chaotic, stressful and totally unprofessional". He wrote that many members of staff were immature and spent large amounts of time on "personal social media and non-company business internet browsing". He wrote that it was common for staff to express and record rude and negative comments about clients and gave as an example a computer entry made by a colleague: "guy says wife fell down the stair and fucked herself". He wrote that he, Messrs McEvoy and Waisome and another colleague, Jennifer Sayhoun, "refused to engage in such activities" because of their work ethic.
According to Mr Wright, during his meeting with Ms Kelly, she said he was "a decent person but not suited to the work". He wrote that Ms Kelly undertook to provide him with a written reference but failed to do so. Mr Wright wrote that prior to being informed he had been dismissed, he had no dealings with Ms Kelly and had not received any warnings or adverse reports about his performance.
Mr Wright wrote that later on the day of his termination, Mr McEvoy informed him that he had also been dismissed and the reason given by Ms Kelly was that he had "a bad back, bad hearing and was too old".
Acorn issued Centrelink employment separation certificates to Messrs McEvoy and Wright. The certificate required Acorn to give the reason for separation. Prepared by Acorn Office Manager, Margaret Guyner, the certificates issued to Messrs McEvoy and Wright both gave as the reason for separation, "unsuitability for this type of work". The certificate listed eight possible reasons for separation, which included, "unsatisfactory work performance". The employment separation certificates are the only business documents produced in these proceedings relating to the termination of Messrs Wright's and McEvoy's employment.

[10]

Ms Kelly's explanation for dismissing Mr McEvoy

Ms Kelly was employed by Acorn from January 2011 until July 2015. On 13 November 2013 Ms Kelly returned from maternity leave to her role as Acorn's Business Development Management. After Mr Waisome's departure, on 24 February 2014 she was given the additional role of National Sales Manager. Acorn did not disclose the reason for the cessation of Ms Kelly's employment except to assert that it was unrelated to the termination of Mr McEvoy's employment and subject to the terms of a "confidential settlement".
Ms Kelly did not give evidence in these proceedings. When contacted by Acorn's solicitors in November 2016, Ms Kelly said she was reluctant to discuss the circumstances surrounding Mr McEvoy's employment and to provide a statement. Acorn was given leave to summons Ms Kelly to appear and give evidence in these proceedings. The process servers engaged by Acorn to serve a summons on Ms Kelly to appear and give evidence reported that they had been unable to locate Ms Kelly.
A week before the hearing, Acorn filed a statement signed by Ms Kelly dated 11 August 2015. In that statement, Ms Kelly wrote that her employment with Acorn had ceased and that she did not have access to Acorn's records to be "able to provide a full and accurate account".
She wrote that in the period leading up to Mr Waisome's departure she often observed Mr McEvoy "due to [the] nature of the open plan office environment and close proximity of all team members". She wrote that Mr Waisome frequently consulted her about the management of the team and "moving sales forward". In addition, she claimed that in January 2014 she raised with Mr Waisome her concerns that Mr McEvoy was "not carrying out his duties as he should".
Ms Kelly wrote that in the first week after taking over from Mr Waisome, she met with all members of the sales staff and outlined what she expected from them. She stated that in her meeting with Mr McEvoy, she raised a number of concerns, including his:

practice of "explaining his family background" to customers during phone calls
lack of knowledge of Acorn's products
time spent on client calls, which Ms Kelly described as "excessive"
failure to transfer calls that were not relevant to his duties
tendency to give clients out-of-date marketing information and irrelevant information
difficulties with using Acorn's computer system.

Ms Kelly went on to write:

There were no records of her meeting with Mr McEvoy because "there were no processes in place within the company which required such records, and I was not given a direction to do so".
Mr McEvoy had not told her he had hearing difficulties but "it was visually obvious that Fenton wore a hearing aid". She wrote that Mr McEvoy replied "no" when she asked whether he "felt … his hearing difficulties affected the way he completed his duties and required any further assistance".
Mr McEvoy did not "take on board the points I had made [in the interview] and simply talked over the top of what I was saying". She attributed this to Mr McEvoy's "personality and nature not to any disability or difficulty".

Ms Kelly wrote that a few days after the meeting with Mr McEvoy, Acorn's WA sales representative, Marc Scarlett, reported that an Acorn business partner had informed him that when he rang Acorn's Sydney's office, rather than passing on the call to the designated person within Acorn to deal with that type of enquiry, the person he spoke to gave incorrect information and "offended the partner with his inappropriateness". Ms Kelly stated that the person the partner had spoken with had identified himself as Mr McEvoy. She wrote that at that stage she felt it was no longer in Acorn's best interests that Mr McEvoy remain and decided to terminate his employment.
Ms Kelly wrote that the reason Mr McEvoy's letter of termination made no mention of the reason his employment had been terminated was that it was her understanding it was not required because the dismissal occurred within the "six-month probationary period". (Under the contract of employment, the probationary period was in fact three months.) She wrote she did not feel that she had discriminated against Mr McEvoy because of his "hearing difficulties". Further, she wrote that she did not believe that Mr McEvoy's "inappropriate behaviour and inability to complete his duties" was linked to his hearing. She claimed that she had employed two other people with hearing difficulties. In closing, Ms Kelly denied discriminating against Mr McEvoy.
Ms Kelly prepared her statement four months after Acorn was notified of the complaint made by Mr McEvoy. She made no mention in the statement about how Mr McEvoy was notified that his employment had been terminated. Nor did she address his claim that the termination meeting took place on 28 February 2014. Although it is plain from her statement that Ms Kelly was aware an allegation of discrimination on the ground of disability (hearing impairment) had been made, it is unknown whether she was informed of the allegations of age and disability (back injury) discrimination as she made no mention of either allegation in her statement.
Ms Kelly did not detail in her statement the information she had been given by Acorn for the purpose of preparing her statement. Nor did Acorn disclose to the Tribunal the information it had provided to Ms Kelly.
The only evidence to support Ms Kelly's claim that adverse reports had been made about Mr McEvoy's performance is that given by former Acorn WA sales representative, Marc Scarlett who left Acorn in August 2014. In these proceedings, Mr Scarlett testified he had been contacted by an Acorn business partner who reported that on ringing Acorn's Sydney office and asking for the name of the person who took the call, that person responded: "I'm your monkey's uncle". At the partner's insistence, the person eventually identified himself as Mr McEvoy. According to Mr Scarlett, the partner reported that when he asked to be put through to a manager, the employee refused.
An email sent by Mr Scarlett to Acorn's Office Manager, Margaret Guymer, on 24 September 2015 was broadly consistent with the account he gave in oral evidence.

[11]

Response to Ms Kelly's statement

A week before the hearing in these proceedings, Acorn gave Mr McEvoy a copy of Ms Kelly's statement. In oral evidence Mr McEvoy disputed Ms Kelly's claim that shortly after her appointment as National Sales Manager, she met with him to discuss performance related issues. He insisted, as claimed in his initiating complaint, that the only time he met with Ms Kelly after she took over from Mr Waisome was the termination meeting on 28 Februray 2014.
Mr McEvoy gave a detailed response to each of the criticisms made by Ms Kelly about his performance. With respect to the allegation that the content of his conversations with clients was inappropriate, he claimed that Ms Kelly would have been unable to listen into those conversations as he wore a headset with a very sensitive microphone. He said that his practice was to cup his hand over his mouth to block out office noise. With respect to the claim that he had poor knowledge of Acorn's products, he agreed with the proposition that he had received no formal training, but he asserted he had sufficient knowledge to perform his role. With respect to the claim that he spent excessive time on client calls, he stated he made 90 to 95 calls a day, the highest number made by any member of his team.
Mr McEvoy testified that during the termination meeting, Ms Kelly stated that his performance was "not an issue" and her focus was on his hearing issues. He said that when he informed her that he wore hearing aids and did not have a hearing problem, she replied that she did not believe him. He wears very small hearing aids inside the ear.
Mr McEvoy strenuously denied saying to a caller, "I'm your monkeys' uncle", or refusing a request to put a call through to a manager. He also claims he was not notified of the complaint reported by Mr Scarlett.
In cross-examination, Mr McEvoy said that prior to 28 February 2014, Mr Waisome had convened a meeting with Ms Sayhoun and Mr Wright to alert us that "they were out to get us".
As noted, for all but the final week of his employment at Acorn, Mr McEvoy was supervised by Mr Waisome and Ms Kelly held the role of Business Development Manager. According to Mr Waisome, Ms Kelly's primary responsibility as Business Development Manager was dealing with occupational therapists and the Department of Veteran Affairs and Mr McEvoy had nothing to do with this area of work. He stated that Ms Kelly had no responsibility for, or day-to-day involvement in, monitoring Mr McEvoy's work.
Mr Waisome denied Ms Kelly's claim that she had discussed management matters with him. He said that she was the "go to person" for technical issues but not management-related issues. He denied that Ms Kelly had raised with him any issue relating to Mr McEvoy's performance. He stated that his team ran well and he was confident he would have "remembered if someone asserted otherwise". He said it would have been difficult, if not impossible, for Ms Kelly to listen in to Mr McEvoy's phone conversations with customers as she sat some distance away and Mr McEvoy wore a headset. He said he had never observed Mr McEvoy's phone manner being inappropriate. He said that from time to time he used a double jack to monitor Mr McEvoy's phone conversations, as he did with all members of his team. He claimed because of the ambient noise without a double-jack, it was not possible to listen into a call.

[12]

Can Mr McEvoy's account of the meeting with Ms Kelly be accepted?

Only Mr McEvoy and Ms Kelly were parties to their alleged conversation on 28 Februray 2014. In that sense, this is a case of word against word. Mr McEvoy gave sworn evidence and was cross-examined about his account. Ms Kelly, on the other hand, was not called by Acorn due to her unavailability. Instead, an unsworn statement was tendered and admitted in evidence. It is obviously relevant but, given the circumstances, especially the fact that it has not been directly tested, the weight it should receive is difficult to assess. On the other hand, on the face of it, Mr McEvoy presented as a plausible and truthful witness.
Demeanour evidence is difficult to assess. Lord Atkin in Société d'Avances Commerciales (Société Anonyme Egyptienne) v Merchants' Marine Insurance Co (The "Palitana') (1924) 20 Ll L Rep 140 at 142 commented that "an ounce of intrinsic merit or demerit in the evidence, that is to say, the comparison of evidence with known facts, is worth pounds of demeanour". See, also Fox v Percy [2003] HCA 22; (2003) 214 CLR 118 at [30] - [31].
Acorn argues that Mr McEvoy's account should not be accepted and that therefore he has not discharged his onus of proof for several reasons. We will deal with each of those submissions.
First, it is argued, Mr McEvoy "has a clear interest in maintaining his version of events". That is so but tells us nothing about where the truth lies as the same can be said to apply to Acorn.
Second, it is said that Ms Kelly's account is logical and detailed and that her claims "do not appear to be manufactured". They have the appearance of logic and detail but it is impossible to comment directly about whether or not they appear to be manufactured. The argument that the statement lacks obvious signs of fabrication takes us very little distance, if any. What can be said, however, is that Ms Kelly's statement is self-serving; was written a considerable period after the events in question; was not written with the advantage of business records; and is contradicted in a number of material respects not only by Mr McEvoy but in some of the detail by other witnesses.
Messrs Waisome and McEvoy were both subjected to cross-examination on issues concerning Ms Kelly's capacity to assess Mr McEvoy's performance. Both maintained their positions plausibly and gave good reasons why Ms Kelly's account should be rejected. Ms Kelly was not present to be asked how she was able to assess Mr McEvoy's performance if he was speaking into a headset microphone. If she had been available she might have been able to answer the question but she was not. The argument by Acorn that the "steadfast refusal" by Messrs Waisome and McEvoy to break down in cross-examination on this point should be held against them, must be rejected. This is especially so as we have not had the benefit of comparing them with Ms Kelly under cross-examination. In our view, on the question of Ms Kelly's capacity to assess Mr McEvoy's performance on the telephone, Mr McEvoy and Mr Waisome gave plausible and apparently reliable evidence.
The third argument put by Acorn was that Mr Scarlett's evidence ought to be accepted. There appears to be no reason why it should not. But evidence of what? It is possible that the person who identified himself as Mr McEvoy was in fact Mr McEvoy. On the other hand, the reported behaviour had all the hallmarks of an immature person. It is possible that the person who claimed to be Mr McEvoy was in fact someone else who, to deflect trouble, decided to blame Mr McEvoy. If there was, as Mr McEvoy and others allege, a culture of immature behaviour in the office, this second scenario is quite possible. It becomes even more plausible when the fact that Mr McEvoy came to Acorn with a good reputation and was a mature man is taken into account. Nonetheless, whether Mr McEvoy acted as alleged is beside the point. Mr Scarlett's report corroborates Ms Kelly's claim she had received an adverse report about Mr McEvoy's interaction with a customer, and this was one of the reasons she dismissed Mr McEvoy.
Fourth, it is argued that Mr McEvoy overstated his sales figures. Apart from the claims made by Messrs Waisome and McEvoy, the only evidence about Mr McEvoy's sales figure was a report headed "Commissions" produced under summons by Acorn. The report lists the commissions paid to members of Acorn's sales team and the telephone sales advisor who made the initiating appointment for the sales person to meet with the customer. The report does not disclose when the reported commission generated - date of installation, execution of contract for sale, or some other event - or the lead time between the making of the appointment by the relevant telephone sales advisor and the relevant event. . Without that information, given the short period he was at Acorn, the report provides little assistance in assessing the respective claims made by the parties about Mr McEvoy's performance vis-a-vis sales generation. But even if accepted that Mr McEvoy was not a 'stellar' performer, the report does not significantly undermine his credibility as a witness. It is also argued that therefore Ms Kelly's evidence should be accepted instead of Mr McEvoy's. With respect, this does not follow at all for the reasons already given.
The fifth argument made by Acorn is that it is implausible that age or disability played a role in Ms Kelly's actions because on the same day she dismissed Mr Wright and a month later, Ms Sayhoun, neither of whom were disabled or of similar age to Mr McEvoy. Acorn contends that the most likely explanation the three were dismissed was because they were seen to be aligned with Mr Waisome who had lost the support of management. While possible, there is no direct evidence to support that hypothesis. The only evidence provided about the reason for the termination of members of Mr Waisome's team are the statements prepared by Mr Wright and Ms Sayhoun. Ms Sayhoun claimed that the stated reason for her termination was that her request to take leave to accompany her father for medical treatment demonstrated a lack of commitment to her job. Mr Wright claims he was told he was dismissed because he was "not suited" to the work.
However, the problems with Ms Kelly's evidence and the submissions put for Acorn on the issue of credibility do not suffice to discharge Mr McEvoy's onus of themselves. In our view, Mr McEvoy has positively discharged that onus for the following reasons.
First, Mr McEvoy's claim that he met with Ms Kelly on 28 February 2014 is uncontradicted and supported by the evidence given by Messrs Wright and Waisome.
Second, Mr McEvoy's account of the comments made by Ms Kelly during that meeting is supported by the complaint evidence given by Messrs Wright and Waisome. Each claim that on the day of the meeting they were told by Mr McEvoy that Ms Kelly had dismissed him and told him he was too old, had a bad back and poor hearing.
Third, his account is also consistent with the history he gave his psychologist, Vera Stark.
Fourth, Mr McEvoy has given a consistent account of the meeting with Ms Kelly, including when cross-examined by counsel for Acorn.
Fifth, while it is possible that Ms Kelly formed a different view about Mr McEvoy's performance to that held by Mr Waisome, Mr Wright and Ms Sayhoun, her claim that there was some basis for her concerns is nonetheless undermined by their evidence. Apart from the evidence given by Mr Scarlett, her claim is unsupported and her unsworn statement has not been tested and was prepared a considerable period after the events.
Sixth, Mr McEvoy's claim that Ms Kelly told him one of the reasons he was being sacked was because he did not "fit the culture" is not implausible given that in an office full of young people who, on some accounts, appeared to lack a real work ethic and to behave in a vulgar fashion, a mature man with hearing aids and a bad back, who dislikes the vulgarity, would not be a perfect fit.
Seventh, on her own account, Ms Kelly raised the issue of Mr McEvoy's hearing impairment. While she insisted this factor played no part in her decision, her actions in raising it during her first meeting with Mr McEvoy in her new role suggests that she considered it to be of some significance. Notably, in her statement Ms Kelly gave no explanation for why she initiated the discussion about Mr McEvoy's hearing loss.
For all these reasons, we are satisfied that Mr McEvoy's account of the conversation he had with Ms Kelly is substantially correct and to be preferred over the account given by Ms Kelly.

[14]

Actual or hypothetical comparator?

Messrs Wright and Waisome were both dismissed at around the same time and apparently neither had Mr McEvoy's protected attributes. Acorn argues it follows that Mr McEvoy was treated in the same way as other employees in comparable circumstances.
As the High Court said in Purvis v New South Wales [2003] HCA 62; (2003) 217 CLR 92 (Purvis), the first step when evaluating whether less favourable treatment is established is to identify the objective features or circumstances attending the treatment given to the applicant.
On the available evidence little is known about the objective features or circumstances attending Mr Waisome dismissal. Taken together with the fact that he held a managerial or leadership role within Acorn, the circumstances surrounding the treatment afforded Mr Waisome could not be said the same or not materially different to those surrounding the treatment afforded Mr McEvoy. Therefore, he does not represent an appropriate comparator.
With respect to Mr Wright, there are a number of similarities between the objective features surrounding his dismissal and that of Mr McEvoy: they held the same position; they were employed for roughly the same period; each was held in high regard by Mr Waisome; neither received an adverse performance report or warning. However, the only evidence about the reasons for Mr Wright's dismissal is his account of being told by Ms Kelly that he was not suited to the role. That sheds no light on the basis for Ms Kelly's opinion. It may be, for example, that Ms Kelly held the opinion that Mr Wright was not suited to the role because he had, or was perceived to have, poor attention to detail. Unless the basis of her opinion is known, it is not possible to say whether the objective features surrounding the treatment afforded to Mr McEvoy and Mr Wright were the same or not materially different.
In the absence of an actual comparator, we must first determine the issue of causation. The question posed is whether Mr McEvoy's age or disability was at least one of the "real", "genuine" or "true" reasons for the dismissal: Purvis at [13], [14], [166]. The alleged ground does not have to be the sole or even the dominant or substantial reason for the termination of Mr McEvoy's employment. Whether the termination was "on the ground of" age and/or disability requires consideration to be given to each ground separately, and not in combination.
It is not controversial that Mr McEvoy had a degree of hearing loss, apparently compensated for by using hearing aids. Nor is it in contest that at the time his employment was terminated he was recovering from a back injury, moving cautiously and taking medication for pain relief.
Based on Mr McEvoy's account of the termination meeting, which we accept, Ms Kelly nominated Mr McEvoy's age as "a problem" and one of the reasons he did not "fit the culture" in a workplace where the average age of employees was between 25 to 30 years.
Ms Kelly also nominated poor hearing and a "broken back", conditions she apparently believed "can only get worse", as further reasons for her decision to terminate Mr McEvoy's employment. She apparently believed that his back problem made a compensation claim inevitable. She apparently did not accept Mr McEvoy's claim that by using hearing aids he could hear "perfectly well", mentioning occasions where he had not responded when she "yelled across the office".
We are satisfied that the age group to which Mr McEvoy belonged, his actual back injury and presumed and actual hearing impairment, separately and in combination, were material reasons for Ms Kelly's assessment that he did "not fit the culture" and was unsuitable to remain in Acorn's employment. Even if Ms Kelly's claim that she held a poor opinion of Ms McEvoy's work performance is accepted, we are satisfied that the reasons for her decision to dismiss Mr McEvoy included his age and each claimed disability. It follows that the dismissal is taken to have been done for each of those reasons: s 4A.
We have taken into account that within a month of Mr McEvoy's termination, Acorn had dismissed all members of staff appointed by Mr Waisome. That they were all dismissed does not negative Mr McEvoy's evidence concerning the reasons for his dismissal
We therefore find it more probable than not that the treatment Acorn afforded Mr McEvoy was less favourable than the treatment that would probably have been afforded to a person not of his age or age group or a person without his nominated disabilities.
It follows that the complaints of discrimination under ss 49ZYB(2)(c) (age) and 49D(2)(c) (disability) are substantiated.

[16]

Principles applying to the exercise of the power to award compensation for loss or damage

In Commissioner of Police, NSW Police v Mooney (No 3) (EOD)[2004] NSWADTAP 22 (Mooney) at [23]-[35], an Appeal Panel of the ADT examined the meaning of the phrase "loss or damage suffered by reason of the respondent's conduct" in the then s 113 of the Act (substantially in the same terms to s 108(2)(a)). The Appeal Panel noted at [27] that while the principles of tort and contract law relating to causation provide a guide, they are not "controlling".
The Appeal Panel (at [28]) concluded that assistance in the proper approach to take to an award of compensation under s 108(2)(a) of the Act could be derived from the approach taken by the High Court in Henville v Walker [2001] HCA 52; (2001) 206 CLR 459 at [82]. Referring to the statutory regime established by s 82 of the former Trade Practices Act 1974 (Cth), the Court wrote: Section 82 of the Act is the statutory source of the appellants' entitlement to damages. The only express guidance given as to the measure of those damages is to be found in the concept of causation in the word "by" [in the case of the Act "by reason of"]. The task is to select a measure of damages which conforms to the remedial purpose of the statute and to the justice and equity of the case."
McHugh J went on to write at [106]: If the defendant's breach has 'materially contributed' to the loss or damage suffered, it will be regarded as a cause of the loss or damage, despite other factors or conditions having played an even more significant role in producing the loss or damage. As long as the breach materially contributed to the damage, a causal connection will ordinarily exist even though the breach without more would not have brought about the damage. In exceptional cases, where an abnormal event intervenes between the breach and damage, it may be right as a matter of common sense to hold that the breach was not a cause of damage. But such cases are exceptional.
That approach has consistently been followed by the ADT and NCAT, see for example, Margan v Manias [2014] NSWCATAP 16 at [39]; Burns v Sunol [2017] NSWCATAD 215 at [70]; Smith v Department of Education and Communities [2013] NSWADT 162; Carter v Brown [2010] NSWADT 109.
Applying these principles, it falls to Mr McEvoy to establish that Acorn's contravention(s) of the Act materially contributed to the claimed economic and non-economic loss.

[18]

Likelihood the employment would continue

In support of the contention that Mr McEvoy has failed to establish that had his employment not been terminated, it would have continued until at least August 2015, Acorn relies on the following factors.
First, the relatively short period Mr McEvoy was employed with Acorn. Second, the evidence of staff turnover and the absence of evidence of employees remaining at Acorn for any significant period. Third, the sales commission data, which suggests he may not have remained in employment for any significant period. Fourth, the departure from Acorn of Mr Waisome, which suggests that had he remained he may not have had the support of management. Fifth, Acorn's right under the contract of employment to lawfully terminate Mr McEvoy's employment with a week's notice.
Apart from the evidence that Messrs Waisome, Wright and McEvoy were each employed for periods of between three to four months, there is no evidence (as Acorn appears to suggest) that this was the average duration of employment for employees or that longevity of employment within Acorn was rare. The available evidence suggests otherwise: Mr Scarlett was employed for two years; Ms Kelly for about three and a half years.
While early 2014 appears to have been a period of turmoil within Acorn, it does not necessarily follow that Mr McEvoy's ongoing position was precarious. As discussed above, the available evidence about the termination of Mr Wright and Ms Sayhoun suggests it was unrelated to Mr Waisome's departure. Without Mr Waisome's support, it may have been that Mr McEvoy's dismissal was inevitable but on the available evidence that hypothesis can be put no higher than a possibility. We have dealt with above the argument about Mr McEvoy's sales performance.
The fact that Mr McEvoy's employment could be lawfully terminated with a week's notice in our view does not tend to establish that Mr McEvoy was unlikely to have remained in employment for any significant period after Februray 2014.
There is no evidence to suggest that the employment of telephone sales advisors was seasonal in nature, or that after Mr McEvoy was dismissed Acorn had no further or a reduced need for the type of work he had been undertaking. We think it more probable than not that had he not been dismissed when he was, Mr McEvoy would have continued in employment at least up until when he commenced work with Crisis Couriers on 31 August 2014, a period of 26 weeks.

[21]

Claim for non-economic loss

Mr McEvoy seeks non-economic loss for "pain, suffering and humiliation" claimed to be the result of the termination of his employment with Acorn.
In his complaint to the Board, under the heading "What would you like to happen to sort out this complaint?" Mr McEvoy wrote: … Myself to regain my feelings of normality and self-confidence, and in therapeutic terms pursue this complaint to help end the trauma, panic attacks, anxiety, depression and suicidal tendencies this has caused me. To receive monetary compensation, if appropriate for loss of job, loss of wages and bonus commissions, pain and suffering, loss of job prospects, loss of self-esteem and feelings of worthlessness, emotional trauma and shock.
In these proceedings, Mr McEvoy repeated these claims. He testified that he found the experience of being dismissed by Acorn "very distressing" and one he "lives with constantly".
He said that while in the past he had been treated for anxiety and was under the care of a psychiatrist, it was not until he left Acorn that he experienced symptoms of depression. In cross-examination, Mr McEvoy insisted he had not been diagnosed with depression prior to leaving Acorn. He said his symptoms of anxiety were controlled through the use of Citalopram, which he commenced taking in 2009. He said because of the severity of his depression and anxiety post-Acorn, in mid-2015 his GP doubled the dosage of Citalopram and he remains on that dose to this day.
He claimed that while at CEO Magazine he was "a mess". He said the decision to terminate his employment with CEO Magazine was justified as he was unable to cope with the role.
Mr McEvoy was referred to psychologist, Vera Stark, by his GP in December 2014 under a mental health plan. Mr McEvoy saw Ms Stark for ten sessions between January 2015 and May 2015. A report prepared by Ms Stark dated 18 September 2016 was admitted into these proceedings, over the objection of Acorn.
In her report, Ms Stark wrote that when she first saw Mr McEvoy on 13 January 2015, he was suffering "depression, stress, anxiety including panic attacks and suicidal ideations". She wrote that on the Depression and Anxiety Scale (DAS), which she described as a "highly reputable self-report assessment tool", Mr McEvoy's depression was in the severe range. She reported that these results were repeated on further testing in March 2015 and May 2015.
Ms Stark wrote that Mr McEvoy had "described himself as being on the scrap heap". She wrote that gainful employment has always been an important part of [Mr McEvoy's] identity" being an "educated and highly qualified gentleman". Pointing out that Mr McEvoy held bachelor degrees in laws and economics, she wrote that working at Acorn had been "beneath his level of education" and consequently the impact of the unexpected and sudden dismissal was "debilitating". Ms Stark wrote that the dismissal from Acorn had eroded his self-confidence, particularly because it criticised a "range of core physical, social and emotional capabilities". She recorded that he was told he was "too old, had a defective back and poor hearing and did not fit the culture of the workplace". She wrote "intense feelings of rejection were generated, as well as loss of face in front of his two adult sons".
Ms Stark wrote that in addition to "suffering panic attacks with symptoms such as a racing heart, fear, tremors and paranoia, Fenton had insomnia and frightening nightmares which exhausted him". She wrote that three months after the sacking he devised a suicide plan and again had suicidal ideations on two other occasions, including in May 2015.
With respect to his employment with CEO Magazine, Ms Stark wrote that he had been briefly employed in early 2015, but was not psychologically up to the work and found it difficult to work with "depressive symptoms such as inertia, lack of confidence, poor concentration and feelings of hopelessness". In her opinion, following his dismissal from Acorn, Mr McEvoy suffered "significant mental health issues which were the result of the harsh way he was treated and insensitive criticisms which undermined his identity and challenged his capabilities".
On 22 June 2015, at the conclusion of the 10 treatment sessions, Ms Stark provided a progress report to Mr McEvoy's GP. Mr Stark wrote that on intake on 13 January 2015, measured on the DAS scale Mr McEvoy scored "severe" for anxiety and stress and "extremely severe" for depression and at the conclusion of treatment those scores showed no measurable improvement.
Ms Stark wrote that the two major stressors for Mr McEvoy were the loss of his job and concerns about his reclusive older son. She wrote that his dismissal triggered nightmares and panic attacks which return intermittently despite "constructive actions such as writing to the Anti-Discrimination Board and persevering in finding employment".
In cross-examination, Ms Stark agreed with the proposition that she was not a "neutral witness" and that she supported Mr McEvoy. She agreed that she had suggested to Mr McEvoy that he make a complaint to the Board as one of a number of recommended strategies to assist him to deal with the dismissal. She claimed she had prepared the report in her capacity as a professional, had endeavoured to be impartial and stood by the opinions expressed in the report.
In cross-examination, Ms Stark agreed with the proposition that throughout the period Mr McEvoy was in her care he was subject to a number of stressors, including his concern for and relationship with his reclusive son. When questioned about the statement in her letter to the GP - "two major stressors for Fenton are the loss of his job and concerns about his reclusive older son" - she said she did not see these stressors as equal and the dismissal was a "precursor to the problem with the son". She described the latter as a major stressor but not as significant as the dismissal from Acorn. She described the dismissal as "a major stressor" which "affected his whole being". She agreed that the dismissal from CEO Magazine was also a stressor. In her view, Mr McEvoy was especially vulnerable because of parallels with experiences in his childhood, which challenged his self-worth.
Mr McEvoy returned to see Ms Stark in August 2016 to request that she prepare a report for these proceedings. When questioned, she stated that on that occasion she observed his mental state had improved but in her opinion he still suffers from depression.

[23]

Consideration

NCAT Procedural Direction 3 "Expert Witnesses" April 2014 made under s 26 of the Civil and Administrative Tribunal Act 2013 (NSW) states that an expert's paramount duty is to the Tribunal and the expert is not an advocate for a party.
There is always a danger that a treating practitioner asked to provide an opinion about their patient, which to their knowledge is likely to be used in litigation, may consciously or otherwise tailor their opinion in a manner which they believe will assist their patient. However, of itself the existence of a practitioner-patient relationship does not preclude the decision-maker from giving the opinion of a treating practitioner significant weight: see Ian Freckleton & Hugh Selby, Expert Evidence: Law Practice and Procedure (Law Book Co, Sydney, first published 2002, 2013 ed) [2.1150]. Nonetheless, it requires the opinion to be "very closely scrutinised": Idoport Pty Ltd v National Australia Bank Ltd [1999] NSWSC 828 at [275].
We do not understand Acorn to dispute Ms Stark's opinion that throughout the period he was in her care, January 2015 to May 2015, Mr McEvoy was suffering depression, stress, anxiety including panic attacks and suicidal ideations. Rather, Acorn disputes the reliability of Ms Stark's opinion about the extent to which those symptoms were causally related to the dismissal.
We accept Ms Stark's claim that she endeavoured to be impartial in providing an opinion about the cause of Mr McEvoy's mental state. Nonetheless, we also accept that a desire to assist Mr McEvoy may have unconsciously influenced her opinion.
In cross-examination, Ms Stark conceded that a number of factors contributed to Mr McEvoy's poor mental health after he left Acorn, but insisted that the major factor was the subject dismissal. While it is possible that in these proceedings, Ms Stark overstated the extent to which she considered the dismissal was a contributing factor, we note that in her letter to the GP of 22 June 2015, she clearly stated that the dismissal was one of two major stressors and that it triggered nightmares and panic attacks. The opinion expressed in that letter was not expressed in the context of litigation and we accept that it was honestly held.
A further difficulty with Ms Stark's evidence is that it seems likely that she did not have a comprehensive history about Mr McEvoy's pre-existing mental health problems. Before joining Acorn Mr McEvoy had been under the care of a psychiatrist for a number of years and taking Citalopram, which he continues to take on to this day. His claim that prior to joining Acorn he had not been diagnosed with, or suffered symptoms of, depression and that he had been prescribed Citalopram for the treatment of anxiety not depression, is unsupported.
In December 2014, Mr McEvoy's GP considered that the state of Mr McEvoy's mental health warranted a referral to a psychologist under a mental health plan. When Ms Stark first saw Mr McEvoy his reported symptoms included "severe anxiety and stress" and "extremely severe depression". We accept his claim that he was deeply affected by the experience of being dismissed from Acorn and it left him with feelings of loss of self-esteem and worthlessness. While it is possible that he has understated the extent to which he was troubled by symptoms of anxiety and depression prior to his dismissal from Acorn, the evidence of his former colleagues is consistent with his self-report that while at Acorn his symptoms were managed by medication and he was not functionally impaired.
For current purposes, we have assumed that prior to commencing with Acorn, Mr McEvoy was being treated not only for anxiety as claimed but also depression. We think it more likely than not that after his dismissal from Acorn, he experienced either significant symptoms of anxiety and depression, or a material worsening of those symptoms. We think it more likely that the deterioration in Mr McEvoy's mental health continued at least until mid-2015.
As acknowledged by Ms Stark, a number of factors probably contributed to this deterioration, including his pre-existing conditions of anxiety and depression, a difficult relationship with his son and his dismissal from Acorn and subsequently CEO Magazine. Where, as in this case, a person has a pre-existing psychiatric condition and is subjected to external stressors, the task of determining the relative contribution of any particular stressor to the development or aggravation of, symptoms of anxiety and depression, is difficult. The task does not lend itself to objective or scientific measurement and is reliant on, among other things, the history given by the sufferer about contentious and emotive events, where more often than not the sufferer lacks objectivity. The task is further complicated where, as in this case, the medical history falls short of the ideal and the events said to have contributed to the symptomology happened some time ago.
Having carefully reviewed the evidence, we conclude that while the termination of his employment by Acorn was one of a number of external stressors that contributed to the symptomology experienced by Mr McEvoy in the period from February 2014 to mid-2015, it nonetheless materially contributed to those symptoms. While we accept, as Mr McEvoy claims, that he continues to live with the memory of the dismissal to this day, without better evidence about his mental health after leaving the care of Ms Stark in mid-2015, we are unable to make any reliable finding about whether the dismissal continued to contribute to any symptoms experienced beyond that period.
The task of assessing damages for non-economic loss in a case of unlawful discrimination is notoriously difficult. The "injury" is often, as in this case, intangible and difficult to measure. As Wilcox J cautioned in Hall v Sheiban (1985) ALR 503 at 543 merely because damages for matters such as injury to feelings, distress, and humiliation "are not susceptible to mathematical calculation", this is not a basis to ignore these items.
In Alexander v Home Office [1998] 1 WLR 968 at 975, the English Court of Appeal warned that in discrimination cases, damages for non-economic loss should "not be minimal, because this would tend to trivialise or diminish respect for public policy". In the circumstances of this case we believe an award of $15,000 for general damages to be appropriate.

McEvoy v Acorn Stairlifts Pty Ltd

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