Discrimination in the workplace is unlawful under a number of Australian laws, including state and federal anti-discrimination legislation (such as the Age Discrimination Act 2004 (Cth)) as well as the Fair Work Act 2009 (Cth) (FW Act).
One of the attributes that is protected by such legislation is a person’s age – meaning that it is unlawful for a person, including an employer or prospective employer, to engage in any action that would disadvantage an employee or prospective employee because of the employee or prospective employee’s age. This can include action such as not employing or promoting a person because of their age, making choices about redundancy or forcing someone to retire based on their age, or harassing or bullying a person because of their age.
The FW Act describes such conduct as “adverse action” and employers who are found to have engaged in unlawful adverse action will be found to have breached the FW Act.
When faced with a claim of adverse action, the onus rests with the employer (or prospective employer) to provide evidence that disproves the claim – a reverse onus of proof. As a result, contemporaneous evidence to support the reasons for any decision alleged to be adverse action becomes extremely important.
In the recent decision of Heather v Hikvision Australia Pty Ltd [2021] FCCA 196, the Federal Circuit Court of Australia (FCCA) had to consider whether an employer’s lack of contemporaneous evidence was enough to disprove a prospective employee’s claim that he had been discriminated against because he was 71 years old.
The prospective employee had been offered a role as a Business Development Manager with Hikvision Australia Pty Ltd (Hikvision). However, after receiving the offer of employment in writing (which set out his remuneration and commencement date) and then providing his identification and employment information (which disclosed his age), the offer was rescinded.
In the proceedings, Hikvision provided affidavit evidence from its CEO (supported by the HR Manager) that he had made the decision to rescind the offer because he had received the business’ mid-year review around the same time and decided to change the business’ strategy.
According to the CEO, at the time of making the offer, the business’ strategy was to target the high-level market and bring in new customers, and he felt the prospective employee was the ideal candidate for that role.
However, after receiving the business’ mid-year review which showed that the business was at risk of losing its existing customers, the CEO considered that this ought to be the focus instead. He also stated that he had concerns about expanding the business in a climate where there were trade tensions between China and the United States, noting that it was a Chinese-based business.
As a result, the CEO decided that the business needed someone who knew the business’ existing client base and the position should be filled internally. He stated that since that time, the business had hired two Business Development Managers who fit that description.
The CEO also gave evidence that, whilst observing that the prospective employee was older in age at the time of the interview, he never knew his age until it was disclosed in the course of the proceedings.
The prospective employee submitted to the Court that the employer had not discharged its onus of proof because there were no contemporaneous documents to support the CEO’s assertions. He stated that it was open for Hikvision to produce the mid-yearly review, the business strategy or any other evidence that showed a change as a result of the trade tensions – but it did not do that.
Ultimately, the FCCA was satisfied that Hikvision had discharged its onus of proof and that it had not engaged in unlawful adverse action by rescinding the job offer because of the prospective employee’s age.
The FCCA acknowledged that the timing of events was “extraordinary” and the matters were “finely balanced”, noting that there was little contemporaneous evidence to support the CEO’s version of events. Nonetheless, it found that the reality of the situation was that the business had changed its strategy. This could be seen from the fact that they did not employ the second ranked candidate in the recruitment process and, at the time of hearing, still did not have any high-level Business Development Manager.
The FCCA warned that, just because the offer was withdrawn immediately after the prospective employee disclosed his date of birth, this could not automatically lead to the conclusion that this had been the cause – drawing an analogy to the rooster’s crow before dawn, which meant that rooster’s crow caused the sun to rise.
Lessons for employers
It is important for employers to remember that they will bear the onus of proof in claims of adverse action and that the most effective way of discharging the onus is to rely on clear contemporaneous evidence.
Employers should ensure that there is contemporaneous evidence to support their genuine reason for taking any such action against any employee, such as a letter to the employee explaining the situation. If there is any increased risk of such a claim during the course of the recruitment process, it may be prudent to seek legal advice.
