Smith v ACN 101 390 505 Pty Ltd

Background 4 The background facts to these proceedings are summarised by the primary Judge in his decision. It is convenient to set them out as follows: 5. The applicant is currently 63 years of age and a career accountant. 6. On 18 November, 2014, she attended at the respondent's office in Toowoomba for the purposes of a job interview. She was interviewed by May McGarva and Angie Gordon, two directors of the respondent company. 7. She attended a second interview on 27 November, 2014 and on this occasion she was interviewed by Mark Callaghan and John Sedgwick, two other directors of the respondent company. Ms Smith claims that during that interview the directors asked her questions relating to her age. In particular, she says that Mr Sedgwick asked her how long she intended to continue to work. Ms Smith says that she replied that she intended to work until she reached pension age and "possibly beyond that". She says that Mr Callaghan asked her how long it was before she reached "pension age" and she told him that it was about seven years. She further claims that Mr Sedgwick said that he had "one of those" on his team and that "they slowed down to the point where they couldn't do the job anymore." 8. Despite this, in December, [2014] the applicant received and accepted an offer of employment from the respondent and commenced working on 5 January, [2015]. 9. Ms Smith continued to work for the respondent until 22 April, 2015 when her employment was terminated. Her evidence is that she was unaware of any issue with her work and that she had completed about 10 "large jobs" and "several smaller ones" during the period of her employment. 10. On a day-to-day basis, Ms Smith's work was subject to an initial review by her manager, Jodie Weiting. Her work would be returned to her with Ms Weiting's "review points" and any requirements that Ms Weiting had of Ms Smith in relation to the particular job that was under review. Upon completion of the review points and any additional requirements from Ms Weiting, the job would pass to Mr Callaghan for his review. If he had changes, which according to Ms Smith's written evidence was usual, the work would come back to her via Ms Weiting for completion. 11. On 22 April, 2015 Ms Smith was summoned to the respondent's boardroom. When she attended, she found that Mr Callaghan, Ms Weiting and Ms Lynda Steffens were there. She was asked to sit down and she was handed a letter of termination, expressed to be of immediate effect. Ms Smith says that she had no indication that her employment was at risk and that she was facing the termination of her employment. She says that she was not given any counselling about her work performance or given any type of warning, either verbal or written. Nor was she given advance notice of the meeting. She asked for the opportunity to have a support person with her, but that was denied. 12. Ms Smith says that she asked why the decision to terminate her employment had been made. She says that Mr Callaghan said that no reason needed to be given because she was still within her probationary period. Ms Smith disputed that, but still no reason was given. She also alleges that Ms Weiting said that her performance had been unsatisfactory and referred to some issues early in Ms Smith's employment about work papers for certain work that she had completed. He [sic] also said that one of the directors had overheard her talking to a client on the telephone and did not think that she was "confident enough". 13. Ms Smith asked to keep her employment and expressed a willingness to overcome whatever issues her employer had with her performance, but her requests were rebuffed. Ms Smith left the workplace and has not returned. 14. Following termination, as required by her employment contract, the respondent paid Ms Smith one week's pay in lieu of notice, as well as her leave and other statutory entitlements. It is uncontroversial that at Ms Smith's request, based on a claim of alleged financial hardship made by her and despite the fact she was not entitled to it, the respondent also paid Ms Smith an additional week's wages, on compassionate grounds. 5 The primary Judge referred to s 351 of the Fair Work Act, which relevantly provides: (1) An employer must not take adverse action against a person who is an employee, or prospective employee, of the employer because of the person's race, colour, sex, sexual orientation, age, physical or mental disability, marital status, family or carer's responsibilities, pregnancy, religion, political opinion, national extraction or social origin. Note: This subsection is a civil remedy provision (see Part 4-1). 6 His Honour also referred to s 361(1) of the Fair Work Act, which provides: (1) If: (a) in an application in relation to a contravention of this Part, it is alleged that a person took, or is taking, action for a particular reason or with a particular intent; and (b) taking that action for that reason or with that intent would constitute a contravention of this Part; it is presumed that the action was, or is being, taken for that reason or with that intent, unless the person proves otherwise. 7 His Honour observed that Ms Smith bore the onus of establishing that adverse action had been taken against her, and that once she had discharged that onus, the respondent bore the onus of establishing that it did not take adverse action because of a prohibited reason (at [16]). His Honour noted at [16] that dismissal constituted adverse action: s 342(1) item 1(a) of the Fair Work Act. His Honour further noted that Ms Smith had been dismissed - and therefore the subject of adverse action - and that the manner in which a respondent may discharge its onus was referable to evidence, in particular, direct testimony of the decision-maker, and findings of fact (Board of Bendigo Regional Institute of Technical and Further Education v Barclay [No 1] (2012) 248 CLR 500; [2012] HCA 32 at [43]). 8 Importantly, his Honour observed: 19. Accordingly, the questions for this Court are: a. is the evidence of the decision maker reliable? b. if not, is the Court in any event satisfied that the reasons for the respondent's decision to terminate Ms Smith's employment did not include, as a substantial and operative factor, her age? 20. If the answer to either question is "yes", then the application will fail. 9 His Honour accepted the respondent's submission that the central issue for determination was whether Ms Smith's age was a substantial or operative reason or immediate reason for the decision to terminate the applicant's employment. The respondent disputed the alleged contravention of s 351 of the Fair Work Act, and: specifically denied it dismissed Ms Smith because of her age; and said that the reason it terminated Ms Smith's employment was because her performance was unsatisfactory and was therefore unsuitable for the role of senior accountant. 10 The primary Judge then examined, in detail, the evidence before him. In particular his Honour found as follows: There was no direct evidence that the reason for Ms Smith's dismissal was her age. She identified none. Ms Smith did not allege that she was given any reason for her dismissal. Her case was based on her supposition that she was dismissed because of her age (at [24]); The respondent gave Ms Smith no reason for the termination of her employment (at [25]); Mr Sedgwick expressed curiosity about Ms Smith's age when he interviewed her (at [25]); Ms Smith's age, the fact that her employment was terminated and the fact that the respondent gave her no reason for the termination, without more, were insufficient to raise a prima facie case necessary to engage the operation of s 361(1) of the Fair Work Act (at [25]); The very fact that the respondent employed Ms Smith and she commenced work in January 2015 stood against her proposition that the respondent and its directors discriminated against her because of her age (at 27]); All of the people who had a part to play in determining to terminate Ms Smith's employment were called to give evidence by the respondent. Ms Smith cross-examined each of them but did not challenge them with the assertion that her employment was terminated because of her age (at [28]); The evidence of each of the four directors was that Ms Smith's age was not even discussed or mentioned at all, not raised as an issue, and was not a factor in the decision, considered and made during the directors' meeting on 16 April 2015. Their evidence to this effect was unchallenged and not contradicted (at [29]); Mr Mark Callaghan (Mr Callaghan), a director of the respondent, gave evidence that he had misgivings concerning Ms Smith's ability to fulfil the requirements of the role for which she was to be employed, based on her quiet demeanour and her history of changing employers. However, he offered Ms Smith the position (at 34]); Ms Smith's employment was subject to a probationary period of three months, and her employment could be terminated upon one week's notice where her service period was less than one year (at 35]); Mr Callaghan gave evidence about the manner in which work was undertaken within the respondent's business (at [37]); Mr Callaghan gave evidence about the pieces of work that he reviewed that had been prepared by Ms Smith (at [38]). In relation to those pieces of work Mr Callaghan identified changes required for technical errors (at [38]). Ms Smith did not challenge Mr Callaghan's evidence about these errors; Mr Callaghan gave evidence that the errors were not such that he would expect from a senior accountant (at [40]); Mr Callaghan gave evidence that he had received reports from other employees that Ms Smith was rude and abrupt to clients, or was unable to fulfil client requests (at [44]). Mr Callaghan gave evidence that Ms Smith's performance more closely resembled that of a graduate accountant (at [46]); Mr Callaghan denied Ms Smith's claim that it was not on Mr Callaghan's "agenda" to continue her after her probationary period as at March 2015. His Honour accepted Mr Callaghan's evidence to this effect (at [47]); Mr Callaghan gave evidence that in April 2015 he reviewed the key performance indicator reports for March 2015, and saw that Ms Smith's billed fees were much less than another employee who had started about the same time as Ms Smith (at [50]); Mr Callaghan gave evidence that, at a directors' meeting on 16 April 2015, he raised issues about Ms Smith's performance and summarised them for the meeting. Mr Callaghan expressed the view that he thought Ms Smith was unsuited to the role (at [51]); Mr Callaghan gave evidence that all directors of the respondent agreed that Ms Smith had failed to follow work procedures; failed to follow instructions from mentors whilst being trained; failed to attend to directions from her manager and director after jobs were reviewed; was argumentative and openly criticised procedures; and, was unable or unwilling to assist clients to solve problems (at [52]); Mr Callaghan gave evidence that the directors unanimously agreed to terminate Ms Smith's employment because of her poor performance and failure to follow procedures and directions, and because her interpersonal skills and client management skills were not to the level expected and required of a senior accountant (at [53]); Mr Callaghan gave evidence that at no point was Ms Smith's age discussed, and he did not consider her age had any relevance to her poor performance or inability to follow instructions and procedures (at [54]); His Honour considered that Ms Smith's distress at not being told the reason for the termination of her employment, and the fact that no-one had discussed concerns about her performance and her interpersonal skills, was reasonable (at [58]); His Honour found that Mr Callaghan was a credible witness (at [62]); His Honour found evidence of Mr Francis Sedgwick (Mr Sedgwick) (a director of the respondent) at times disingenuous, and considered that Mr Sedgwick was concerned about Ms Smith's age (at [68]). However his Honour noted that, irrespective of any concerns Mr Sedgwick may have had, the respondent employed Ms Smith; Ms May McGarva (Ms McGarva), a director of the respondent, gave evidence that in 2011 she recommended the other directors not to employee Ms Smith because of, inter alia, her interpersonal skills, concerns about why Ms Smith had left her previous employer, and concerns about Ms Smith's technical expertise (at [74]); Ms McGarva gave evidence that, after an interview with Ms Smith in 2014, the directors of the respondent agreed that due to Ms Smith's significant level of experience she might be able to fulfil the role and they would monitor her performance around the other areas (at [79]); Ms McGarva gave evidence that, on several occasions, she heard Ms Smith on the telephone to a client and her manner and tone of voice was unprofessional, hesitant, abrupt, dismissive and unhelpful (at [80], [81]). Ms McGarva gave evidence that, despite repeated attempts to train Ms Smith in the practices and procedures adopted by the respondent, she was unwilling to learn and follow those procedures. Ms McGarva formed the view that Ms Smith lacked the communication and interpersonal skills to successfully fulfil the role of a senior accountant (at [83]); Ms Angelique Gordon (Ms Gordon), another director of the respondent, gave evidence that she had concerns about Ms Smith from the beginning, in particular that while Ms Smith had the requisite technical experience and knowledge, Ms Gordon was concerned about Ms Smith's employment history, the short length of time spent in some of her previous positions and that she might not have had the requisite interpersonal skills required for the position (at [85]). His Honour accepted Ms Gordon's evidence (at [86]); His Honour examined evidence of Ms Jodie Wieting, Ms Smith's immediate supervisor, Ms Kirsty Gillett (another accountant employed by the respondent) and Ms Lynda Steffens (an accountant who was the "business manager" for the respondent). His Honour found that their evidence did not support a finding that there were concerns about Ms Smith's age. 11 His Honour concluded as follows: 113. There is no doubt that the respondent took adverse action against Ms Smith when her employment was terminated. 114. I accept the evidence of Mr Callaghan, Mr Sedgwick, Ms McGarva and Ms Gordon that the reason that they resolved as directors of the respondent to terminate Ms Smith's employment was because she was unsuitable for the role that they wished her to fulfil. I accept that they were concerned about her willingness and capacity to follow the respondent's procedures and her interpersonal skills. They were concerned about her contact with clients. Whilst she was technically sound, the directors of the respondent formed the view that she was unsuitable for the position because of those matters. 115. The evidence does reveal that Ms Smith may have a basis for legitimate complaint about the way in which she was treated in the respondents business. The evidence shows that whilst there were difficulties noticed with her behaviour as set out above, it seems that no one in the respondent's organisation saw it as their role to speak to her about it. Ms Gillett, Ms Wieting and Ms Steffens all disavowed an obligation to speak with Ms Smith about their concerns for her behaviour. Ms McGarva did not do so because she was not part of Ms McGarva's team. For reasons that are not at all clear neither did Mr Callaghan. Moreover, the way in which Ms Smith's termination was handled demonstrated a lack of respect for her in the extreme and the failure to provide any real reason for the termination of her employment was unjustified even if she was being terminated because her probation period was unsatisfactory. 116. However, these are not proceedings for unfair dismissal but rather a general protections claim based on age discrimination. As the respondent submits, the merits of the decision to terminate Ms Smith's employment is not of itself a justiciable issue in these proceedings. Ms Smith's suitability for the position as a senior accountant due to her unsatisfactory performance, or whether her performance was in fact poor or whether her termination was unfair, are all of little relevance to the central issue for determination in these proceedings. 117. Irrespective of whether s 361(1) of the Fair Work Act is engaged, I am satisfied that the respondent has demonstrated through its evidence that the reason why Ms Smith's employment was terminated was because she: a. failed to carry out the duties expected of a senior accountant in accordance with and as required by the respondent's standard procedures and policies to the reasonable satisfaction of the respondent; b. failed to comply with reasonable instructions and lawful directions of the respondent; c. conducted herself in a way that was unhelpful towards other staff members; and d. conducted herself in a way that was unaccepting of assistance and training provided to her by other staff members. 118. There is ample evidence to support each of these matters. 119. There is no direct evidence of age discrimination against Ms Smith or any evidence that her age was a substantial and operative reason for her dismissal. Moreover, there is no evidence from which I would draw such an inference. I am satisfied, and I find, that Ms Smith's age did not play any part in the decision of the respondents directors to terminate her employment. 120. In those circumstances, the application must be dismissed.

Appeal 12 The grounds of appeal on which Ms Smith relied are as follows: 1. That s361 was not engaged and that not all of the evidence related to this was considered and/or 2. That the judgment was based on evidence unrelated to the decision makers reasoning as to why the decision to take the adverse action was taken, and/or that the judgement did not consider all of the evidence which was relevant, and/or 3. That the decision did not include an analysis of the application of the "'Jones v Dunkel" inference' in relation to the minutes of the meeting of directors during which the decision was made to terminate the employment of the Appellant, Or 4. That the trial should have been declared a mis-trial on the afternoon of the 1st day of the trial due to: 4.1. The Counsel for the Respondent permitting the presence of 6 of his 7 witnesses during his examination of the Appellant until a time close to the end of the examination when His Honour, Judge Jarrett, ordered that they leave the courtroom, and as His Honour stated at the time, the evidence of these 6 witnesses was thus 'tainted', and/or 4.2. The Counsel for the Respondent asked a question, related to a prior case brought by the Appellant on a different Respondent, during examination of the Appellant which the Appellant requested that she not have to answer on the grounds that it was irrelevant and who was then questioned by His Honour, Judge Jarrett, on the subject which then made the Appellant's request not the answer the question redundant, and/or 4.3. The Appellant was not offered the opportunity to request that the affidavits of the 7 witnesses be redacted in the same way that the Appellant's affidavits were redacted. 13 Ms Smith sought the following orders: 1. That the Respondent be ordered to pay the Appellant the sum of $47,788 in lost wages and $4,540 in lost superannuation being an approximate but reasonably accurate estimate of the amount of wages and superannuation lost by the Appellant between the dates of termination of employment and the cessation of business by the Respondent, including the relevant redundancy payment, in lieu of re-instatement to the Appellant's previous position as that is not now practical as the Respondent has ceased trading. (These amounts have been calculated to take into account the gross salary being paid to the Appellant on the date of termination, the 2 weeks pay in lieu of notice already received by the Appellant and $56,827 in wages earned by the Appellant up to the 20th July 2016 (plus another 2 weeks to allow for the redundancy period applicable to the Appellant had she been employed by the Respondent up until the date they ceased trading) which is the date that the Respondent changed it's name which, I, the Appellant assumes to be the same date that the Respondent ceased trading. If this is not the correct date then the amount can be re-calculated to that date) And, 2. That the Respondent be ordered to pay the Appellant the sum of $100,000 for personal injury, hurt and humiliation caused by the adverse action of the Respondent. Or, 3. That the trial be ordered a mis-trial and a new trial ordered on the basis of the grounds set out in 4 above. 14 In support of her grounds of appeal, Ms Smith filed several sets of submissions. The final submissions were filed by Ms Smith on 22 April 2020. These submissions are lengthy, and appear substantially similar to Ms Smith's submissions filed on 13 April 2020. I understand that the final submissions filed by Ms Smith are her primary submissions in this appeal.

Grounds of appeal 1 and 2 15 There is considerable overlap between grounds of appeal 1 and 2, in both of which Ms Smith claimed that the primary Judge failed to take into account all relevant evidence. In ground 1, Ms Smith submitted that his Honour failed to consider all relevant evidence and in so doing failed to make a determination as to whether s 361 of the Fair Work Act was engaged. In ground 2, Ms Smith submitted that his Honour did not consider all evidence that a prima facie case existed that the respondent took action for a reason prohibited by s 342 of the Fair Work Act, and/or that the primary Judge did not consider the judgment of Charlesworth J in Celand v Skycity Adelaide Pty Ltd [2017] FCAFC 222. It is appropriate to examine these grounds of appeal together. 16 His Honour noted in the primary judgment that the respondent asserted the following reasons for taking adverse action against Ms Smith: Ms Smith failed to carry out the duties expected of a senior accountant in accordance with and as required by the respondent's standard procedures and policies to the reasonable satisfaction of the respondent; Ms Smith failed to comply with reasonable instructions and lawful directions of the respondent; Ms Smith conducted herself in a way that was unhelpful towards clients; Ms Smith conducted herself in a way that was unhelpful and unfriendly towards other staff members; and Ms Smith conducted herself in a way that was unaccepting of assistance and training provided to her by other staff members. 17 Ms Smith's submissions addressed these reasons asserted by the respondent.

Ms Smith's submissions 18 In summary, Ms Smith submitted that: In relation to s 361, it is presumed that action was, or is being, taken for that reason or with that intent, unless the person proves otherwise; There can be more than one substantial reason for adverse action; The primary Judge simply compared the scenario that the respondent took adverse action against Ms Smith because her performance was unsatisfactory with the scenario that it took adverse action because Ms Smith was old, and decided it was more likely that it was because of poor performance; His Honour "fell into the trap" of comparing the possible reasons for termination and preferring one scenario to another, whereas the proper approach is to determine whether the proscribed reason is more likely than not; His Honour at [25] of the primary judgment set out factors he considered were those on which Ms Smith relied relevant to the establishment of a prima facie case of age discrimination, however, in Ms Smith's submission, relevant facts were: (a) Ms Smith was 59 years old at the time; (b) Ms Smith's employment was terminated; (c) The respondent conducted the termination meeting in "such a covert and underhanded manner" that any reasonable person would have assumed that they were not acting in accordance with the Fair Work Act; (d) Mr Sedgwick was "obsessed" with Ms Smith's age, and was prepared to discriminate against older persons based on a prejudice about perceived characteristics of older persons; (e) The respondent had a staff of accountants primarily in their twenties and thirties. The under-representation of accountants over the age of 45 is "circumstantial evidence that the respondent discriminated against older candidates in their recruitment activities"; (f) Ms Steffens saying "it is impossible for you to change" to Ms Smith during the termination meeting should be interpreted as meaning "you can't teach an old dog new tricks" in the context of that meeting; The primary Judge underestimated the importance of Mr Sedgwick's "curiosity" about Ms Smith's age; The primary Judge should have given greater weight to Mr Sedgwick's interview notes made on 27 November 2014; There was no suggestion in the email exchange between Ms Wieting and Ms Steffens prior to the termination meeting that Ms Smith be terminated or that she would not be able to improve her performance; In light of the reasoning in Celand v Skycity Adelaide Pty Ltd [2017] FCAFC 222, there was no need for Ms Smith to do more than show that the evidence was consistent with the hypothesis that the respondent took adverse action for the prohibited reason and that his Honour erred in finding that Ms Smith needed to raise a prima facie case before s 361 applied; The primary Judge was selective in his consideration of evidence, examining some evidence of the decision-makers and failing to consider other evidence which contradicted it; and The primary Judge failed to consider any of the evidence which supported an alternative view that Ms Smith's performance was well above the standard required by the respondent. 19 In relation to the quality of work produced by Ms Smith, Ms Smith submitted (in summary): The respondent failed to provide any evidence of what constituted "the reasonable satisfaction of the respondent"; It was the role of Ms Wieting to correct errors of Ms Smith before submitting her work to Mr Callaghan, however clearly Ms Wieting failed to do her job completely as Mr Callaghan was able to find errors in the work himself; Ms Wieting refused to take a telephone call from an important client, yet Ms Wieting's employment had not been terminated; Ms Steffens had resigned prior to the hearing of the case, however she had made errors in the separation certificate she had prepared for Ms Smith; It should be inferred that the standard where the respondent would be reasonably satisfied was extremely low; Ms Smith's work was at least to the same standard as that of Ms Wieting and Ms Steffens; and An analysis of errors in Ms Smith's work showed that only one was a "technical" error, further these errors were normal and to be expected in a normal employee. 20 In relation to the quantity of work produced by Ms Smith, Ms Smith submitted (in summary): The evidence demonstrated that Ms Smith exceeded the standard of work required regarding the quantity of work produced; The comparison by his Honour between the performance reports referable to Ms Smith, and those referable to Lynda Fitch, was not a proper comparison, as there was no allowance for work in progress; and The actual work completed by Ms Smith in the time she was employed by the respondent compared to her budget for the same time gave a more accurate picture of her productivity. 21 In relation to alleged failure of Ms Smith to comply with reasonable instructions and lawful directions of the respondent, Ms Smith submitted (in summary): The respondent did not provide evidence that Ms Smith failed to comply with reasonable instructions and lawful directions; and Ms Steffens was unable to demonstrate under cross-examination that there was any factual basis for assertions of poor performance. 22 In relation to alleged conduct in an unhelpful manner towards clients, Ms Smith submitted (in summary): The respondent did not provide evidence that Ms Smith so conducted herself; Ms McGarva's evidence concerning overhearing a conversation between Ms Smith and a client was referable to timesheets, which were not in evidence; An employee of the respondent may have tampered with a file note relating to an alleged request by Ms Smith for bank statements from a client; Ms Wieting was the employee who conducted herself in a manner which was unhelpful to a client on 26 March 2015, not Ms Smith. 23 In relation to conduct of Ms Smith which was allegedly unhelpful and unfriendly towards other staff members, Ms Smith submitted (in summary): Ms Smith provided evidence of an incident which occurred on her very first day of employment with the respondent where she showed herself to be a friendly and empathetic person towards the other staff when she took the head of the table for a welcome morning tea for herself and another staff member who started on the same day, because the other staff member was too shy to be the centre of attention; There was other evidence of conversations Ms Smith had had with staff members, demonstrating that she was friendly and empathetic; The evidence demonstrated that it was Ms Wieting and Ms Gillett who were unfriendly towards Ms Smith, rather than Ms Smith who was unfriendly towards other staff members; and Mr Callaghan admitted that he did not discuss the issue of the alleged unfriendliness of Ms Smith with her directly. 24 In relation to alleged conduct that was unaccepting of assistance and training provided to her by other staff members, Ms Smith submitted (in summary): The respondent did not provide any evidence of this; and Although Ms Wieting stated under cross-examination that she heard both the voice of Ms Smith and Ms Lynda Fitch raised in a discussion about training of Ms Smith, "if it was not 'serious enough' for Mrs Wieting to get up out of her chair and walk the few steps around the corner to the applicant's desk then it wasn't serious enough to be a reason for terminating the applicant's employment". 25 In relation to his Honour's finding that the decision-makers were reliable witnesses, Ms Smith submitted that, rather, there was evidence that those witnesses were not reliable because (in summary): His Honour stated, on 19 January 2016, whilst Ms Smith was giving oral evidence under examination by the respondent's Counsel, Mr Johnson, that the evidence of 6 witnesses for the respondent (including all four of the 'decision-makers') was 'tainted' as the witnesses had been present in the Court during the testimony of Ms Smith; All four 'decision-makers' lied in their affidavits and their oral evidence; Mr Sedgwick clearly had concerns about Ms Smith's age, and in fact was obsessed about it; Ms Gordon stated incorrectly that Ms Smith had held five different jobs in the five years prior to the interview with the respondent, however the fact was that Ms Smith had held five jobs in the twelve years prior to the interview; Ms Smith submitted that Ms Gordon lied when she gave evidence that she had misplaced her interview notes from 18 November 2014; Ms McGarva probably lied about not keeping notes from the earlier interview in 2011, and certainly lied in relation to how she ascertained the date of a telephone call between Ms Smith and a client; and Mr Callaghan lied about the productivity of Ms Smith both in terms of the quality and quantity of her work.

Consideration 26 As the Full Court recently observed in AFT Pharmaceuticals (AU) Pty Limited v Reckitt Benckiser (Australia) Pty Limited (2020) 143 ACSR 522; [2020] FCAFC 45: 102. … the appropriate appellate approach was captured by Perram J in Aldi Foods Pty Ltd v Moroccanoil Israel Ltd [2018] FCAFC 93; (2018) 261 FCR 301 (Aldi) at [49]. As his Honour said, the Court's appellate jurisdiction is an appeal by way of rehearing, and involves the correction of error. In a case like the present, error is not demonstrated merely because the appellate court disagrees with the primary judge and to succeed in the appeal the appellant must establish error. Such error may be shown in a number of ways: On the one hand, error may appear syllogistically where it is apparent that the conclusion which has been reached has involved some false step; for example, where some relevant matter has been overlooked or some extraneous consideration taken into account which ought not to have been. But error, on the other hand, may also appear without any such explicitly erroneous reasoning. The result may be such as simply to bespeak error. Allsop J said in such cases an error may be manifest where the appellate court has a sufficiently clear difference of opinion: Branir at 437-438 [29]. 27 Similarly in Fortescue Metals Group v Warrie on behalf of the Yindjibarndi People (2019) 374 ALR 448; [2019] FCAFC 177, Robertson and Griffiths JJ said: 497. As Allsop J explained in Branir, the task of a court in an appeal by way of rehearing is the correction of error rather than redetermination of the question of fact de novo. In fact finding of a certain nature a trial judge enjoys advantages which mean that she or he is in a better position than the appeal court to ascertain the true state of affairs. The court on appeal must account for these advantages in examination of the trial judge's findings and in its own assessment of the significance of any divergence between its view of the evidence and the conclusions reached by the primary judge. Where the trial judge's advantages are significant, it may mean that despite a tentative divergence in views based on the record of the evidence, the appeal court may properly conclude that it is not satisfied that any error exists or that a different finding of fact is warranted. In reaching this conclusion, the appeal court still comes to its own view on the facts, but in doing so, it recognises the position of the trial judge as a relevant factor in its assessment of the evidence. The process was described by Allsop J in Branir at [29]: The degree of tolerance for any such divergence in any particular case will often be a product of the perceived advantage enjoyed by the trial judge. Sometimes, where matters of impression and judgment are concerned, giving "full weight" or "particular weight" to the views of the trial judge might be seen to shade into a degree of tolerance for a divergence of views [various authorities] ... In such cases the personal impression or conception of the trial judge may be one not fully able to be expressed or reasoned: see for example Re Wolanski's Registered Design [1953] HCA 72; (1953) 88 CLR 278, 281 and Secretary of State for Foreign Affairs v Charlesworth, Pilling & Co [1901] AC 373, 391. However, as Hill J said in Commissioner of Taxation (Cth) v Chubb Australia Ltd [1995] FCA 147; (1995) 56 FCR 557 at 573 "giving full weight" to the view appealed from should not be taken too far. The appeal court must come to the view that the trial judge was wrong to interfere. Even if the question is one of impression or judgment, a sufficiently clear difference of opinion may necessitate that conclusion. 498. The relevant findings of fact challenged by FMG are ones which attract a significant degree of tolerance, as also was the case in Moses where the Full Court said at [308]-[309] (applied to the "occupy" enquiry by Sebastian at [293]-[294]): The difficulty faced by a party alleging an error in the fact finding process in a proceeding such as the present is formidable. The question whether the applicants for a native title determination have established the necessary degree of connection to land by traditional laws and customs is a matter of judgment involving an assessment of a wide array of evidence. Where the trial has involved 81 hearing days, including 35 days "on country" at 76 sites, hearing from 76 indigenous witnesses, 6 pastoralists and 11 expert witnesses on matters of archaeology, history, linguistics and anthropology, the assessment is a complex process of assimilation of a large and diverse body of material. The conclusions will often necessarily be expressed in a highly summarised form, and in some instances will involve matters of impression. In the present case these factors are evident throughout his Honour's reasons concerning the degree of connection. The purpose in setting out in such detail earlier in these reasons the approach taken by his Honour is to illustrate the scope of the exercise and the interlocking nature of many of the issues so that findings on the evidence relating to one issue are often applied to other issues as well. Nevertheless, these circumstances, however challenging, do not alter the role of an appellate court , which was explained by Gleeson CJ, Gummow and Kirby JJ in Fox v Percy [2003] HCA 22; (2003) 214 CLR 118 at [25] thus: Within the constraints marked out by the nature of the appellate process, the appellate court is obliged to conduct a real review of the trial and, in cases where the trial was conducted before a judge sitting alone, of that judge's reasons. Appellate courts are not excused from the task of "weighing conflicting evidence and drawing [their] own inferences and conclusions, though [they] should always bear in mind that [they have] neither seen nor heard the witnesses, and should make due allowance in this respect" (Dearman v Dearman [1908] HCA 84; (1908) 7 CLR 549 at 564, citing The Glannibanta (1876) 1 PD 283 at 287). In CSR v Della Maddalena [2006] HCA 1; (2006) 80 ALJR 458; 224 ALR 1 at [17], Kirby J (with whom Gleeson CJ agreed) explained some of the limitations on the appellate role inherent in the nature of the function as follows: The "limitations" introduced into the rehearing based on the record of the trial are those necessarily involved in that form of appellate procedure. Such limitations include those occasioned by the resolution of any conflicts at trial about witness credibility based on factors such as the demeanour or impression of witnesses; any disadvantages that may derive from considerations not adequately reflected in the recorded transcript of the trial; and matters arising from the advantages that a primary judge may enjoy in the opportunity to consider, and reflect upon, the entirety of the evidence as it is received at trial and to draw conclusions from the evidence, viewed as a whole. (Footnotes omitted). 28 The submissions of Ms Smith in relation to grounds of appeal 1 and 2 are detailed, being in the order of 28 pages. 29 Taking into account the absence of a contradictor, and that in considering grounds of appeal 1 and 2 I must be satisfied by the submissions of Ms Smith that an order granting the appeal is warranted, I make the following findings. 30 First, in determining Ms Smith's application, his Honour applied the correct test under the Fair Work Act in considering whether adverse action had been taken against Ms Smith for reasons proscribed by s 351 of that Act. His Honour referred to the seminal decision of the High Court of Australia in Board of Bendigo Regional Institute of Technical and Further Education v Barclay [No 1] [2012] (2012) 248 CLR 500; HCA 32, and observed that the evidence of the decision-maker was critical to determining the reasons for adverse action taken against Ms Smith. The primary Judge clearly made a finding at [119] that Ms Smith's age was not a "substantial and operative reason for her dismissal", based on the evidence before the Court. I find no fault in this approach on the part of his Honour. 31 Second, s 361 of the Fair Work Act provides: Reason for action to be presumed unless proved otherwise (1) If: (a) in an application in relation to a contravention of this Part, it is alleged that a person took, or is taking, action for a particular reason or with a particular intent; and (b) taking that action for that reason or with that intent would constitute a contravention of this Part; it is presumed that the action was, or is being, taken for that reason or with that intent, unless the person proves otherwise. (2) Subsection (1) does not apply in relation to orders for an interim injunction. 32 At [24] and [25] his Honour observed: 24. The respondent argues that Ms Smith has not raised a sufficient prima facie case to engage s.361(1) of the Act. I tend to agree. Whilst there is no dispute that the respondent took adverse action against Ms Smith by terminating her employment, there is no direct evidence that the reason for Ms Smith's dismissal was her age. She identifies none. She does not allege that she was given any reason for her dismissal. Her case is based on her supposition that she was dismissed because of her age. 25. There are three uncontroversial matters that emerge from the evidence - Ms Smith's age, the fact that her employment was terminated and the fact that the respondent gave her no reason for the termination. Ms Smith argues that these three matters, perhaps coupled with Mr Sedgwick's curiosity about her age when he interviewed her (as to which I have set out the evidence below) give rise to a prima facie case of age discrimination against the respondent. However in my view those matters on their own or in combination, are insufficient to raise a prima facie case necessary to engage the operation of s.361(1) of the Act. 33 Critically, however, his Honour continued at [26]: 26. In any event, by reason of the findings that I have made below, it is unnecessary to finally determine this point. 34 There is no requirement for an applicant to establish a prima facie case - in the sense of a prima facie connection between the alleged adverse action and a workplace right - to engage s 361(1) of the Fair Work Act. Rather - s 361 is engaged by the making of the allegation required by that section. This was explained by Charlesworth J in Celand v Skycity Adelaide Pty Ltd [2017] FCAFC 222 at [152] and [153], where her Honour then continued: 154. There are, on the authorities, two qualifications to the proposition that the making of the requisite allegation suffices to engage the s 361 presumption. The first is that an applicant will not take the benefit of the s 361 presumption unless the applicant establishes as an objective fact the circumstance said to be the reason for the taking of the adverse action…. 155. A second qualification is that referred to by Flick J in Hall in the following passage at [25]: Third, in order to invoke the reverse onus of proof, an applicant need only establish that "the evidence is consistent with the hypothesis" that a respondent was actuated by a proscribed reason. … 35 Her Honour concluded: 157. Neither of those qualifications requires an applicant to establish a prima facie connection between the alleged adverse action and a prohibited reason. There is an obvious difference between establishing a prima facie connection and demonstrating that the connection between the reason alleged and the impugned conduct is not so remote as to be fanciful. 36 In the present case, adverse action had been taken against Ms Smith within the meaning of Item 1 of s 342(1) of the Fair Work Act, namely she had been dismissed. As an objective fact, Ms Smith was 63 years of age at the time of the proceedings. Importantly, Ms Smith had led evidence in the primary proceedings, including that unflattering comments concerning her age had been made by Mr Sedgwick at her employment interview only months before her termination. To that extent: Ms Smith had established, as an objective fact, the circumstance said to be the reason for the taking of the adverse action, and There was evidence consistent with the hypothesis that the respondent's action had been actuated by a reason proscribed by s 351 of the Fair Work Act. 37 On these facts, s 361 was engaged, and the onus rested on the respondent to prove that adverse action had been taken against Ms Smith for reasons other than those proscribed by s 351 of the Fair Work Act. 38 Turning to the primary judgment, his Honour ultimately did not require Ms Smith to prove a prima facie case in the terms to which he referred at [24]. This is apparent from [26] of the primary judgment. Importantly, earlier in the judgment his Honour had said at [16]: Ms Smith bears the onus of establishing that adverse action has been taken against her and once she has discharged that onus, the respondent bears the onus of establishing that it did not take adverse action because of a prohibited reason. Adverse action is defined in s 342 of the Fair Work Act. Relevantly, it will have occurred where an employer dismisses an employee: s 342(1) item 1(a) of the Act. 39 His Honour found that adverse action was taken against Ms Smith by the respondent (at [113]). More importantly, in examining the evidence before the Court, his Honour proceeded - correctly - on the basis that the onus rested on the respondent to substantiate its reasons for taking that adverse action against Ms Smith. Ultimately his Honour concluded that the respondent had discharged that onus. 40 I am satisfied that his Honour's decision was not influenced by an incorrect construction of s 361. In determining the matter, his Honour correctly proceeded on the basis that the onus of proof had reversed in accordance with s 361, and that it was necessary for the respondent to satisfy the Court that it had not acted in contravention of Part 3-1 of the Fair Work Act. It follows that the test applied by his Honour to determine whether there had been a contravention of the Fair Work Act was the correct test, and his Honour was not led into error notwithstanding his comments at [24] concerning s 361. 41 Third, the primary Judge detailed evidence on which the respondent relied to substantiate its case that Ms Smith had been dismissed because the respondent considered her performance to be unsatisfactory and the respondent considered Ms Smith unsuitable for the role of senior accountant. His Honour identified "all of the people who had a part to play in determining to terminate Ms Smith's employment" (at [28]), and, at length, examined evidence of each of them, namely Mr Callaghan (at [30]-[55]), Mr Sedgwick (at [63]-[73]), Ms McGarva (at [74]-[84]) and Ms Gordon (at [85]-[89]). His Honour also reviewed the evidence of Ms Gillett at [91]-[98], Ms Steffens at [99]-[105], and Ms Wieting at [106]-[112]). 42 His Honour made credit findings concerning these witnesses, including that: Mr Callaghan was a generally truthful witness, whose evidence was generally reliable (at [62]); Mr Sedgwick's evidence was, in certain respects, disingenuous (at [68]); and The evidence of Mr Callaghan, Mr Sedgwick, Ms McGarva and Ms Gordon concerning their reasons for terminating Ms Smith's employment was credible (at [114]). 43 The consideration by his Honour of the evidence of these witnesses was thorough. In respect of the view taken by his Honour of that evidence, it is appropriate to repeat the following comments of Dawson, Gaudron and McHugh in Louth v Diprose (1992) 175 CLR 621; [1992] HCA 61 at 66: … They are findings which were substantially dependent on the trial judge's assessment of character and credit and which were reached having regard to the demeanour of the parties in the witness box. As such and as the authorities repeatedly acknowledge, they are findings which, unless some error is to be discerned, an appeal court must respect. 44 I am not persuaded that there is any reason for rejecting his Honour's evidentiary findings in the circumstances. 45 Fourth, in respect of grounds 1 and 2, Ms Smith's submissions included extensive assertions of fact, criticisms of witnesses for the respondent (in particular Ms Wieting), allegations of untruthfulness on the part of witnesses for the respondent, criticisms of his Honour's interpretation of evidence of witnesses for the respondent, criticisms of conduct of the respondent in respect of other employees, and alleged tainting of evidence of witnesses for the respondent. However: Again, the primary Judge heard and saw all relevant witnesses, and was in the best position to make findings concerning their credibility; As a general proposition it is unlikely that all seven witnesses for the respondent would lie under oath, including during cross-examination; To the extent that the decision-makers in the respondent believed that Ms Smith's work was of a standard inadequate for the role of senior accountant, this was a subjective belief which was open to his Honour to accept as credible, and which his Honour accepted as credible; Ms Smith's claimed that her performance was well above the standard required by the respondent were relevant, however his Honour was entitled to, and did, place weight on the views taken by the decision-makers in the respondent concerning Ms Smith's performance, including her interaction with clients; Although Ms Smith claimed that Mr Sedgwick was "obsessed" with her age, and that the primary Judge "underestimated the importance of Mr Sedgwick's curiosity" concerning her age, the only relevant evidence of any concerns of Mr Sedgwick was apparently his question of Ms Smith concerning her age during the interview. As his Honour found at [69], despite that question being put by Mr Sedgwick to Ms Smith at that time, the respondent nonetheless subsequently employed Ms Smith. It was open to his Honour to conclude that, to that extent, Ms Smith's age was not a factor which the respondent considered relevant; Claims by Ms Smith that work performance of other employees was inadequate was only her opinion, and, in any event, of minimal relevance to the operative reason for the respondent terminating her employment; Comparisons by Ms Smith between the standard of her work and that of other employees derived from her own opinions, and once again, was of minimal relevance to the operative reason for the respondent terminating her employment; Claims by Ms Smith in her submissions that she exceeded the standard of work required was her own opinion, and of little (if any) probative value or relevance; and Insofar as I can ascertain from the material before me, no witnesses other than Ms Smith gave evidence supporting her claim that she had been dismissed by the respondent for reasons contrary to the Fair Work Act. 46 Fifth, the fact that his Honour did not refer, in minute detail, to all evidence before him, does not mean that his Honour failed to have regard to all relevant evidence. As the Court of Appeal of Victoria observed in Fletcher Construction Australia Ltd v Lines MacFarlane & Marshall Pty Ltd (No 2) [2002] VSCA 189 at [157]: The duty to deal with facts or evidence is not absolute. The evidence must be significant in the sense that, unless disposed of, it stands in the way of the Court's conclusions. The Court need not deal in terms with evidence when its importance falls away because of the manner in which the Court disposes of the case. Nevertheless, if evidence is significant, it is not to be peremptorily shunted aside or ignored. 47 See also Carlisle Homes Pty Ltd v Barrett Property Group Pty Ltd [2009] FCAFC 31 at [44], New Zealand v Johnston (2011) 274 ALR 509; [2011] FCAFC 2 at [105]. 48 Finally, Ms Smith claimed his Honour incorrectly adopted an approach of confining his consideration of the case between (on the one hand) the likelihood of the respondent's claimed reasons for termination and (on the other hand) the likelihood of discrimination against Ms Smith for age-related reasons. However, as the primary judgment plainly shows, his Honour simply accepted the evidence of the decision-makers in the respondent that Ms Smith's employment had been terminated for reasons of performance. I do not accept that his Honour constrained his reasoning in the terms alleged by Ms Smith. 49 Grounds of appeal 1 and 2 are not substantiated.

Ground of appeal 3 50 In respect of ground of appeal 3, Ms Smith submitted that the most accurate way to determine what was said at the meeting of directors of 16 April 2015, where the decision was made to terminate her employment, was to have regard to the minutes of that meeting. Ms Smith submitted that: The minutes of meeting were not tendered as evidence because they would have shown that Ms Smith's age was the reason the directors decided to terminate her employment; and A Jones v Dunkel inference should have been drawn by the primary Judge against the respondent in light of their failure to tender the minutes. 51 As the High Court observed in Australian Securities and Investments Commission v Hellicar (2012) 247 CLR 345; [2012] HCA 17 at [167], the decision in Jones v Dunkel (1959) 101 CLR 298; [1959] HCA 8 is a particular and vivid example of the principles that govern how the demonstration that other evidence could have been called, but was not, may be used. Importantly, the case stands for the principle that: …any inference favourable to the plaintiff for which there was ground in the evidence might be more confidently drawn when a person presumably able to put the true complexion on the facts relied on as the ground for the inference has not been called as a witness by the defendant and the evidence provides no sufficient explanation of his absence. (Kitto J in Jones v Dunkel (1959) 101 CLR 298 at 308) 52 In relation to this ground of appeal however: It is unclear to me whether the issue concerning the absence of the minutes of meeting in evidence was raised by Ms Smith before the primary Judge; whether Ms Smith raised with any witnesses the absence of the minutes of meeting in evidence before the Court; or whether Ms Smith called for production of the minutes of meeting at the hearing; The best evidence in respect of the reasons of the decision-makers was their evidence under oath, tested by Ms Smith at the hearing; To the extent that the decision-makers were the directors present at the meeting of 16 April 2015, they were witnesses at the hearing before his Honour, and gave evidence; It may well be that the minutes of meeting of directors set out information relevant to the termination of Ms Smith's employment, however such information could only have been tested by Ms Smith's cross-examination of the directors who attended that meeting, and there is no question that Ms Smith cross-examined those directors as witnesses during the hearing; and A Jones v Dunkel inference may do no more than support an acceptance of the opposing party's evidence already sufficient for the outcome or the drawing of an inference from the evidence already drawn to the reasonable satisfaction of the Judge or jury: Adler v Australian Securities and Investments Commission (2003) 179 FLR 1; [2003] NSWCA 131 at [650]. The primary Judge had detailed regard to evidence before the Court, including evidence of decision-makers, and concluded that the respondent had satisfactorily explained the reason for the termination of Ms Smith's employment. 53 In circumstances where the directors who attended the meeting of 16 April 2015, and who were the relevant decision-makers, gave evidence at the trial, and were cross-examined by Ms Smith, there is no unexplained failure on the part of the respondent to call witnesses or tender documentary evidence. No Jones v Dunkel inference arose from the absence of the minutes of meeting in evidence before his Honour. 54 Ground of appeal 3 is not substantiated.

Ground of appeal 4 55 In her written submissions Ms Smith contended: His Honour also asserts that he found the 'decision-makers' to be reliable witnesses despite there being evidence that they were not reliable. His Honour stated, on 19th January 2016, whilst the applicant was giving oral evidence under examination of the respondent's counsel, Mr Johnson, that the evidence of 6 witnesses for the respondent (including all four of the 'decision-makers') was 'tainted' as the witnesses had been present in the Court during the testimony of the Applicant. His Honour does not appear to have taken this into account in his judgment. 56 Insofar as I can ascertain, no other submissions in this appeal in respect of this ground were made by Ms Smith. These written submissions appear relevant only to ground of appeal 4.1. 57 There are limits to the extent that a trial Judge can assist a litigant in person in the course of a trial without unfairness to other litigants in the process: see discussions in such cases as N Johnson (Appellant/Husband) and M L Johnson (Cross-Appellant/Wife) [1997] FamCA 32 and Rajski v Scitec Corporation Pty Ltd (unreported, 16 June, 1986 (Butterworths Unreported Judgments BC8600928)). 58 Further, as I have already observed, a trial Judge has significant advantages in assessing the credibility of witnesses. There is ample authority that findings of fact based on credibility or demeanour of witnesses can only be reversed by an appellate Court in exceptional cases: see for example Fox v Percy (2003) 214 CLR 118; [2003] HCA 22 at [94]. 59 Ms Smith submitted that the absence of reference in the primary judgment to allegedly "tainted" evidence of the respondent's witnesses meant that his Honour had not taken into account his alleged earlier concerns about the "tainting" of that evidence. I do not accept this. It does not appear that, in making this submission, Ms Smith alleged intimidation of her by the respondent (compare, for example, White v R [2017] NZCA 322). Rather, Ms Smith submitted that his Honour had concerns about the nature of the evidence in this case arising from the presence of the respondent's witnesses during her cross-examination by the respondent's Counsel. However despite this alleged concern on the part of his Honour, it is apparent from the primary judgment that his Honour accepted the evidence of the respondent's witnesses. 60 Insofar as I can ascertain from unsworn assertions of Ms Smith in her submissions, the position appears to be as follows: During the course of oral evidence given by Ms Smith, his Honour became aware of potential issues relating to contamination of evidence of witnesses for the respondent because those witnesses were present in Court during cross-examination of Ms Smith; His Honour made a comment concerning possible "tainting" of evidence referable to the presence of those witnesses; and His Honour ordered those witnesses to leave the Court room. 61 To the extent that the submissions of Ms Smith on this point reflect events during the trial, it appears that the primary Judge was alive to issues of credibility arising from the presence of witnesses in the court room. His Honour was in a position to assess the evidence of all witnesses in this case, and accord it appropriate weight and credit. It is clear that his Honour did so. 62 I am not satisfied that the issues relied on by Ms Smith in ground 4.1 constitute a basis for setting aside the findings or ultimate orders of the primary Judge. 63 In relation to ground 4.2, in the absence of particulars I am unable to identify the basis on which justice is alleged to have miscarried such as to warrant the orders of his Honour being set aside. Ground 4.2 is so vague as to be meaningless, and in my view, has no merit. 64 In relation to ground 4.3, in the absence of particulars this ground is also so vague as to be meaningless, and has no merit. 65 In summary, ground of appeal 4 is not substantiated.

Conclusion 66 The appropriate order is to dismiss the appeal. I certify that the preceding sixty-six (66) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Collier.