Vink v LED Technologies Pty Ltd

THE FACTUAL BACKGROUND 2 Mr Vink is a qualified accountant. At relevant times he was 66 and 67 years old. In June 2011, LED (using the services of a recruitment agency) advertised the position of company accountant. Mr Vink applied. In the course of August 2011 Mr Vink was interviewed twice by officers of the company. The second interview was conducted by the then general manager, Mr David Clerk. On 25 August 2011 Mr Vink was offered and accepted employment with LED. His employment had been authorised by Mr Tony Ottobre, the managing director of LED, who was in the United States at the time at which Mr Vink was engaged. 3 Between 31 August and 3 October 2011, Mr Vink worked on one day per week for LED. Towards the end of October 2011 Mr Ottobre returned from the United States. Shortly afterwards, according to Mr Vink, Mr Ottobre accused him (Mr Vink) of not answering Mr Ottobre's e-mails, of sabotaging LED's e-mail system and of not paying certain of Mr Ottobre's personal bills. Mr Ottobre also refused a request by Mr Vink to be given a key to LED's premises. Mr Vink considered that these accusations were unwarranted and he was bemused by the refusal to give him a key. 4 On 9 November 2011 Mr Clerk accused Mr Vink of causing Mr Ottobre's personal telephone to be disconnected. On the same day Mr Ottobre's daughter accused Mr Vink of having done something to the company's computer because it was not working as quickly as it had done previously. 5 On 10 November 2011 Mr Clerk dismissed the applicant. Mr Vink deposed that, during the interview with Mr Clerk in which he was advised of the termination of his employment, Mr Clerk had said that: Mr Ottobre accepted that Mr Vink was not responsible for Mr Ottobre's telephone having been disconnected; Mr Ottobre and Mr Clerk had decided the previous evening that Mr Vink was "the wrong fit" for LED; Mr Ottobre wanted a "youthful and vibrant" work atmosphere; and Mr Ottobre wanted his daughter to take the applicant's position. 6 Mr Vink apprehended that he was being dismissed because of his age. He told Mr Clerk that LED could not dismiss him for that reason. Mr Clerk was said to have responded that an employer was free to dismiss an employee for any reason during the first three months of the employee's employment. 7 Mr Ottobre responded to Mr Vink's allegations in an affidavit which he swore prior to trial. He deposed that: The decision to terminate Mr Vink's employment was made by him; At no time had he told Mr Clerk or any other employee of LED that Mr Vink's age was an issue or that his age had anything to do with the termination of Mr Vink's employment; His decision to terminate Mr Vink's employment was in no way based on Mr Vink's age; He was well aware, at the time at which he authorised the engagement of Mr Vink, that Mr Vink was aged in his sixties; It had been necessary, following the departure of Mr Vink, for external accountants to be engaged to resolve issues caused by Mr Vink's poor performance of his duties; He had not dismissed Mr Vink so that he could employ his daughter; and LED had engaged a 59 year old company accountant to replace Mr Vink. 8 In a later affidavit Mr Ottobre deposed that it had taken his staff about two weeks to "rectify the serious problems caused by [Mr Vink] due to his ineptitude".

THE RELEVANT LEGISLATION 9 The relevant provisions of the FW Act all appear in Part 3-1 of Chapter 3 of that Act. This Part is entitled "General Protections". One of these protections is to be found in s 351. It provided that: "(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 … age … . (2) However, subsection (1) does not apply to action that is: (a) not unlawful under any anti-discrimination law in force in the place where the action is taken; or (b) taken because of the inherent requirements of the particular position concerned; or (c) … (3) Each of the following is an anti-discrimination law: a. the Age Discrimination Act 2004; … (b) the Equal Opportunity Act 1995 of Victoria;" 10 Adverse action is defined, in s 342, to include dismissal. 11 By s 360 it is provided that "a person takes action for a particular reason if the reasons for the action include that reason." 12 Section 361(1) of the FW Act provided for the onus of proof when allegations of contravention of protection provisions in Part 3-1 are made. It read: "(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, in proceedings arising from the application, that the action was, or is being, taken for that reason or with that intent, unless the person proves otherwise."

THE PROCEEDING IN THE FEDERAL MAGISTRATES COURT 13 Having failed to resolve his dispute with LED in what then was known as Fair Work Australia, Mr Vink made an application to the Federal Magistrates Court under s 539 of the FW Act. He sought an order that he be reinstated or, in the alternative, be paid monetary compensation and provided with a reference. He also sought the imposition of a pecuniary penalty on LED. 14 Mr Vink filed an affidavit in support of his application and was cross-examined on that affidavit at trial. 15 Mr Vink's case was that he had been dismissed, because of his age, contrary to s 351 of the FW Act. 16 LED denied the allegation. It relied on two affidavits sworn by Mr Ottobre. Mr Ottobre was cross-examined at trial by Mr Vink who appeared for himself. Mr Ottobre maintained that Mr Vink had been dismissed because he was not competent to perform the duties for which he was employed. Mr Ottobre expressly denied, in his affidavit evidence, that Mr Vink's age had any bearing on the decision to terminate his services. 17 Mr Clerk, who had advised Mr Vink of LED's decision to terminate his services on instruction from Mr Ottobre, was not called to give evidence. The trial occurred some nine months after the termination and, by that time, Mr Clerk had ceased to be employed by LED. 18 It was common ground at trial (and on this appeal) that it was Mr Ottobre who had made the decision to dismiss Mr Vink. 19 The Federal Magistrate found that it was more probable than not that Mr Clerk told Mr Vink that Mr Ottobre wanted a vibrant and youthful culture in the company. She said it was possible that Mr Clerk had said this because it would be less hurtful to Mr Vink than telling him that Mr Ottobre thought that he was incompetent. That possibility was, as the Federal Magistrate recognised, merely speculative given that Mr Clerk had not given evidence. 20 The Federal Magistrate correctly held that, regardless of what Mr Clerk might or might not have said to Mr Vink, the Court was required to determine Mr Ottobre's reasons for dismissing Mr Vink. 21 In his first affidavit Mr Ottobre assigned four reasons for his decision to dismiss Mr Vink. The first was that Mr Vink had paid an account for $189,000 twice. In cross-examination Mr Ottobre conceded that he was not aware of the second payment at the time at which he decided to dismiss Mr Vink. 22 The second reason was that Mr Vink had been slow in paying bills totalling about $900,000. Mr Ottobre withdrew this allegation at trial because he had discovered that these were accounts which were owed to LED. 23 The third reason was that a receptionist had sent Mr Clerk an e-mail on 3 November 2011 in which she said that she had been getting telephone calls throughout the day from customers who had paid their bills and who claimed that their account statements did not record these payments. The e-mail was in evidence. The Federal magistrate accepted that this information was a factor in Mr Ottobre's decision to dismiss Mr Vink. 24 The fourth reason was that another officer of LED, a Mr Daniel Groves who was Mr Clerk's predecessor, had reported to him that bills were going unpaid and payments were being made incorrectly. This evidence was not challenged at trial and the Federal Magistrate accepted that Mr Groves had so advised Mr Ottobre. 25 In his second affidavit Mr Ottobre had deposed that, following his return from the United States at the end of October 2011, he had received a number of requests from creditors who were seeking payment of overdue accounts. This had caused him embarrassment. This evidence was not challenged at trial. The Federal Magistrate accepted it and also accepted that this was a factor in Mr Ottobre's decision to dismiss Mr Vink. 26 The Federal Magistrate's reasons continued: "42. I also accept that Mr Ottobre believed, rightly or wrongly, when he made the decision to terminate the applicant's employment, that bills were going unpaid and payments were being incorrectly made. 43. At the hearing, Mr Ottobre was much more blunt about his reasons for dismissing the applicant than he had been in his affidavits. He told the applicant: The reason you were dismissed is because you're incompetent at bookkeeping. 44. When the applicant noted the respondent had failed to provide evidence substantiating that allegation, Mr Ottobre said: I don't need evidence if you're making mistakes and not paying bills and not entering payments. So you're incompetent. 45. It would have been preferable if the respondent had provided documentary evidence substantiating Mr Ottobre's concerns about the applicant's performance. The attempts to provide documentary evidence to substantiate the applicant's performance issues were unsuccessful. However, notwithstanding those deficiencies in the respondent's case, I do find Mr Ottobre's unsubstantiated evidence persuasive 46. Mr Ottobre said, without challenge, and I accept, that on his return from the USA, he received a number of requests from creditors for outstanding amounts to be paid and he found that embarrassing. 47. Mr Ottobre said, without challenge, that he knew the applicant was 66 years old when the respondent employed him. The respondent employed the applicant only a matter of weeks before he was dismissed. Moreover, Mr Ottobre said, without challenge, that the company accountant who replaced the applicant is 59 years old. I accept this evidence. It suggests that Mr Ottobre is entirely content with employing accountants who are around retirement age. 48. Mr Ottobre categorically denied that age was a factor in his decision to dismiss the applicant. In view of all of the evidence in this case, I accept that denial. It seems to me that, rightly or wrongly, Mr Ottobre believed that the applicant was incompetent when Mr Ottobre decided on 9 November 2011 to dismiss the applicant. I do not accept that the applicant's age was a factor in that decision. The applicant's age was certainly not the "substantial and operative" reason for the applicant's dismissal."

THE APPEAL 27 In his amended notice of appeal in this Court Mr Vink relied on two grounds. The first was framed as follows: "When the Learned Magistrate found that the respondent had discharged the onus of proof to displace the statutory presumption in section 361(1)(1) (sic) of the Fair Work Act 2009 (the Act), Her Honour erred in law because Her Honour did not: (a) consider all the facts established in the proceeding, including the reason given by Mr Clerk to the applicant for his dismissal was "that Mr Ottobre wanted a vibrant and youthful culture", thereby implying that the applicant's age was the reason for his dismissal; (b) in assessing the reliability and weight to be given to the evidence said to discharge the onus of proof (and displace the presumption in section 361(1)(1) (sic) of the Act), balance the evidence against: (i) the applicant's evidence; (ii) an inference to be drawn from the respondent's failure to call Mr Clerk to give evidence; (iii) an inference to be drawn from the failure of the respondent to put to the applicant that Mr Clerk did not say to the applicant "that Mr Ottobre wanted a vibrant and youthful culture"; and (iv) the respondent's failure to prove any of the allegations made against the applicant, which formed the basis of the: i. reasons relied upon by the respondent for its dismissal of the applicant; and ii. the decision maker's belief as to the reasons relied upon by the respondent for its dismissal of the applicant." 28 The second ground alleged that the Federal Magistrate had misconstrued s 361(1) of the FW Act when she said that Mr Vink's age was certainly not the "substantial and operative" reason for his dismissal.

The first ground 29 Mr Vink's first ground was founded on Mr Clerk's statement that Mr Ottobre wanted a vibrant and youthful culture in the company. The Federal Magistrate had accepted that such a statement had been made by Mr Clerk. As a result, it was submitted, a "compelling inference" should have been drawn that Mr Vink had been dismissed because of his age. No other evidence called by LED supported the drawing of any contrary inference. Such evidence as had been given by Mr Ottobre as to his reasons for dismissing Mr Vink was "glaringly improbable". Mr Vink pointed to the failure of LED to produce documentary evidence to support the allegation of incompetence, the withdrawal of some of the bases originally relied on by Mr Ottobre to support these allegations and there being "insufficient evidence" from which it might be inferred that Mr Ottobre's asserted reason played any part in his decision. 30 Mr Vink also relied on the failure of LED to call Mr Clerk, Mr Groves or the receptionist who had sent the e-mail to Mr Clerk on 3 November 2011. He submitted that a Jones v Dunkel inference could be drawn in relation to Mr Clerk's absence. 31 In Board of Bendigo Regional Institute of Technical and Further Education v Barclay (2012) 290 ALR 647 the High Court considered the manner in which courts should approach cases in which an applicant claims that one of the protective provisions in Part 3-1 of the FW Act has been contravened "because" the respondent has acted for a proscribed reason. The reverse onus provisions of s 361(1) govern that approach. 32 The protective provision which was considered in Barclay was s 346 of the FW Act. That provision prevented adverse action being taken against employees because they were officers or members of a union or were engaged in certain union-related activities. In their joint judgment (at [127]) Gummow and Hayne JJ said that: "In determining an application under s 346 the Federal Court was to assess whether the engagement of an employee in an industrial activity was a 'substantial and operative factor' as to constitute a 'reason', potentially among many reasons, for adverse action to be taken against that employee. In assessing the evidence led to discharge the onus upon the employer under s 361(1), the reliability and weight of such evidence was to be balanced against evidence adduced by the employee and the overall facts and circumstances of each case; but it was the reasons of the decision-maker at the time the adverse action was taken which was the focus of the inquiry." French CJ and Crennan J expressed similar views (at [45]). Their Honours said that: "This question is one of fact, which must be answered in the light of all the facts established in the proceeding. Generally, it will be extremely difficult to displace the statutory presumption in s 361 if no direct testimony is given by the decision-maker acting on behalf of the employer. Direct evidence of the reason why a decision-maker took adverse action, which may include positive evidence that the action was not taken for a prohibited reason, may be unreliable because of other contradictory evidence given by the decision-maker or because other objective facts are proven which contradict the decision-maker's evidence. However, direct testimony from the decision-maker which is accepted as reliable is capable of discharging the burden upon an employer even though an employee may be an officer or member of an industrial association and engage in industrial activity." 33 Like s 346, s 351 of the FW Act is engaged if adverse action is taken because of an attribute of the complainant, in this case, his age. 34 The starting point in cases where s 361(1) of the FW Act applies is, as the Federal Magistrate recognised, that it will be presumed that the employer acted for a proscribed reason. Normally, this presumption will not be displaced unless the decision-maker gives evidence, which is accepted by the Court, that he or she did not act for that reason. 35 When, as in the present case, the decision-maker does give evidence and denies acting for an impermissible reason, the Court must examine the evidence as a whole. If some of the additional evidence tends to undermine the denial, the trier of fact must assess the reliability and weight of the employer's evidence against the contradictory evidence. Ultimately, the Court must determine whether or not it accepts the decision-maker's evidence. If it does the presumption will be displaced. If not, the applicant will succeed. 36 Mr Ottobre deposed that he had caused Mr Vink to be dismissed because he considered him to be incompetent. He expressly denied having acted because of Mr Vink's age. Although Mr Ottobre was cross-examined at trial, it was not put to him that his denial was false or that he had, in fact, taken the decision, at least in part, because of Mr Vink's age. 37 Other evidence supported and undermined Mr Ottobre's denial. 38 Mr Ottobre had given unchallenged evidence, which the Federal Magistrate accepted, that some of LED's customers had complained that their accounts had not been credited with payments which they had made, that Mr Groves had reported to Mr Ottobre that bills were going unpaid and payments were being made incorrectly and that Mr Ottobre had received complaints from creditors of the company about overdue payments. These, the Federal Magistrate found, were matters known to Mr Ottobre at the time at which he decided to dismiss Mr Vink and which influenced his decision. 39 There was, on the other hand, the evidence of Mr Vink that Mr Clerk had advised him that Mr Ottobre had decided that Mr Vink should be dismissed, not because of incompetence, but because of Mr Ottobre's desire to instil a vibrant and youthful culture in the company. This evidence was accepted by the Federal Magistrate. The occasion for the drawing of a Jones v Dunkel inference did not arise. The so-called rule was explained by J.D. Heydon in Cross On Evidence, 9th Australian edition, at 36 [1215] as follows: "First, unexplained failure by a party to give evidence, to call witnesses, or to tender documents or other evidence … may (not must) in appropriate circumstances lead to an inference that the uncalled evidence or missing material would not have assisted that party's case." Even if it be assumed that Mr Clerk was available to be called by LED and that a forensic decision was taken not to call him, the failure to do so did not prejudice Mr Vink. His evidence about what Mr Clerk had said to him was accepted by the Federal Magistrate without resort to a Jones v Dunkel inference. 40 There was, as the Federal Magistrate also accepted, very little corroborative evidence called by LED to support Mr Ottobre's allegation that Mr Vink was incompetent. Mr Vink steadfastly maintained, under cross-examination, that he had performed his duties satisfactorily. Mr Vink did, however, accept that a number of complaints about his performance had been made to him in the short period which elapsed between Mr Ottobre's return to Australia at the end of October 2011 and the termination of his employment less than two weeks later. He agreed that Mr Ottobre had complained to him about the disconnection of his telephone, Mr Vink's failure to respond to e-mails, the "sabotaging" of the e-mail system, and the failure by Mr Vink to pay Mr Ottobre's personal bills. Mr Vink strenuously denied that these allegations had any substance. 41 It is to be borne in mind that the issue before the Federal Magistrate was not whether Mr Vink had been unfairly dismissed within the meaning of Part 3-2 of Chapter 3 of the FW Act. Her task was to determine whether or not LED, acting through Mr Ottobre, had dismissed Mr Vink because of his age contrary to Part 3-1 of Chapter 3. Unless the contrary was established by LED it was presumed that LED had acted for this proscribed reason. 42 LED called the decision-maker Mr Ottobre. Mr Ottobre gave unchallenged evidence that he had acted because he considered that Mr Vink was incompetent and had not done so because of Mr Vink's age. 43 There was evidence that Mr Ottobre had been advised of complaints by customers of LED that account payments had not been recorded and that creditors had not been paid on time. Mr Vink confirmed that Mr Ottobre had made a number of complaints to him about what Mr Ottobre had alleged were shortcomings in the way in which Mr Vink had performed his duties. These complaints had been made in the days leading up to the termination of his employment. Mr Ottobre had been aware that Mr Vink was aged 66 at the time at which he authorised Mr Vink's engagement. Mr Vink's successor was aged 59. There was, therefore, objective evidence which supported Mr Ottobre's claim to have acted for an innocent reason. 44 It is not, therefore, correct that there was no evidence before the Federal Magistrate which supported the central claims made by Mr Ottobre. The Federal Magistrate accepted his evidence, as she was entitled to do. As a result, the presumption set up by s 361 of the FW Act was displaced. 45 It is not to the point to argue that LED had been forced to disavow reliance on certain other evidence, that there was a dearth of corroborative documentary evidence supporting the allegation of incompetence or that there was evidence by Mr Vink that he performed his duties to an appropriate standard. These were claims which may well have weighed heavily in an unfair dismissal claim. Had such a claim been made the trier of fact may well have concluded that Mr Ottobre was mistaken in his assessment of Mr Vink's performance or that there was insufficient evidence before Mr Ottobre to justify him dismissing Mr Vink. In a case such as the present, however, where what was alleged was a contravention of s 351 of the FW Act, the focus was on the substantial and operative reasons which motivated Mr Ottobre to dismiss Mr Vink. Provided that those reasons did not include Mr Vink's age, it mattered not that they were based on a mistaken assessment or were not supported by the weight of the evidence. 46 The Federal Magistrate accepted, as she was entitled to do, that Mr Ottobre had, rightly or wrongly, decided that Mr Vink was incompetent and should be dismissed for that reason and that he had not acted because of Mr Vink's age. 47 Some reference was made in argument to the High Court's decision in Fox v Percy (2003) 214 CLR 118. This case dealt with the approach which an appellate court should take when dealing with challenges to a primary judge's fact finding which was based, in part, on an assessment of the credibility of witnesses. It was held that an appellate court should not interfere with factual findings based on the credit of witnesses unless the primary judge's findings were "glaringly improbable" or could not rationally be reconciled within incontrovertible facts, uncontested testimony or compelling inferences: see at 124-9, 133, 138-9 and 147. 48 Mr Vink argued that the Federal Magistrate had erred by inferring that Mr Ottobre had not acted because of Mr Vink's age. This inference was said to have been "glaringly improbable" and contrary to other compelling inferences because of what was said to be the absence of any evidence to support the claim that Mr Vink had not performed his duties competently. 49 These contentions must be rejected. There was, as I have already pointed out, some objective evidence that Mr Vink had not performed his duties to a satisfactory standard and, more importantly, that Mr Ottobre thought this to be the case. 50 In any event, the Federal Magistrate's reasons do not suggest that she made her finding that Mr Ottobre had not acted because of Mr Vink's age on the basis of any inferences drawn by her. Even had she done so there is no suggestion in her reasons that any inferences were based upon her assessment of the credibility of either Mr Ottobre or Mr Vink. Although the Federal Magistrate had the advantage of observing Mr Vink and Mr Ottobre in the witness box, she made no findings, adverse or otherwise, about the credibility of either witness. Her findings were based, in the main, on the affidavit evidence of Mr Vink and Mr Ottobre. Where that evidence was unchallenged she accepted it. 51 The first ground has not been made out.

The second ground 52 This ground arises from the final sentence of paragraph [48] of the Federal Magistrate's reasons which are set out above at [26]. Her Honour there said that Mr Vink's "age was certainly not the 'substantial and operative' reason for [his] dismissal." 53 Mr Vink argued that this sentence bespoke error because the Federal Magistrate had failed to appreciate that there could be multiple substantial and operative reasons for adverse action being taken against an employee. The presumption created by s 361 of the FW Act could not be displaced by a respondent merely establishing that a proscribed reason was not the reason for the adverse action being taken. 54 Section 360 of the FW Act deals with the possibility that an employer may act for more than one reason. It provides that "a person takes action for a particular reason if the reasons for the action include that reason." The Federal Magistrate was alert to this provision and quoted it in her reasons. She also quoted passages from the joint judgments of French CJ and Crennan J and Gummow and Hayne JJ in Barclay in which their Honours referred to a proscribed reason being "a substantial and operative factor" in the reasons for the adverse action being taken (emphasis added). Furthermore, in the sentence immediately preceding the one on which the second ground is founded, she said that she did not "accept that [Mr Vink's] age was a factor in that decision" (emphasis added). 55 In my view, a fair appreciation of the Federal Magistrate's reasons, when read as a whole, suggests that the use of the word "the" in the final sentence of paragraph [48] was no more than a linguistic slip. It is not indicative of legal error. 56 This ground has not been made out.

DISPOSITION 57 The appeal must be dismissed with costs. I certify that the preceding fifty-seven (57) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Tracey.