- A 66 year-old accountant (Mr Vink) was hired by LED Technologies on 31 August 2011.
- At the time of hiring, the managing director knew Vink was 66 years old.
- The managing director became aware of performance issues with Vink, for example, payments being incorrectly made.
- On 10 November 2011 Vink was fired by a general manager (not the managing director).
- Vink claimed the general manager said to him that he was the wrong fit for LED and that the managing director wanted a youthful and vibrant work atmosphere.
- The general manager could not give evidence about what he said because he had left the job by the time of the hearing.
- On 21 December 2011, Vink made an adverse action claim against LED alleging he was fired because of his age. LED argued he was fired because he was incompetent.
- Application heard by Federal Magistrates Court: 23 August 2012; decision given: 9 October 2012. It was found at first instance that Vink was fired because of concerns with his competence and not because of his age.
- Vink appealed to the Federal Court, appeal heard: 29 April 2013; decision given; 16 May 2013.
- Vink was unrepresented at the initial hearing in the Federal Magistrates Court but represented at the Federal Court.
- As it is an adverse action claim, the decision maker’s reason for firing the employee had to be assessed and, here, that decision maker was the managing director, not the general manager who fired Vink.
- The real reason Vink was fired was because of Vink’s performance.
- It was speculated that the general manager didn’t want to hurt Vink’s feelings by saying he was incompetent and instead told Vink that the managing director wanted a vibrant and youthful culture.
- Appeal dismissed; costs ordered against Vink.
Key take-away messages:
- It is important that any person delegated the job of firing employees understands adverse action and what words should be used when firing an employee.
- Employers should exercise caution in the first 6 months of employment (or 12 months for small business employers), when unfair dismissal claims are not available, as they are still open to adverse action claims being made against them.