This case concerned the dismissal of an employee on the grounds that he did not "fit the culture" of the workplace. The employer was found to have unlawfully discriminated against the employee as their real reason for dismissal was based on his age, back injury and hearing impairment, and was ordered to pay damages for both economic and non-economic loss.

In Issue

  • Whether the employee was discriminated against after being dismissed due to his age and disabilities.

The Background

Mr McEvoy was employed as a telephone sales advisor with Acorn Stairlifts Pty Ltd (Acorn). He was 62 years old. Acorn dismissed Mr McEvoy 16 weeks into his employment during a meeting with Acorn's Sales Manager, Laura Kelly.

Mr McEvoy issued discrimination proceedings out of the NSW Civil and Administrative Tribunal alleging unlawful discrimination on the basis of age and disability in contravention of the Anti-Discrimination Act 1977 (NSW). In particular, he alleged:

  • that at the termination meeting, Ms Kelly advised he was being dismissed because he “did not fit the culture” of the workplace, given that other employees were aged between 25 to 30;
  • Ms Kelly also stated she had concerns about a back injury that he had sustained outside of work, and expressed concern that he would commence a worker’s compensation claim for the injury;
  • Ms Kelly believed he had hearing loss because she would yell at him across the office or next to his ear. However, this was not in fact the case, and his reasons for doing so were because he did not “…respond to being yelled at”.

Acorn denied these allegations, claiming that Mr McEvoy’s employment was terminated due to “on-going problems with his performance”.

The Decision of the Tribunal

The NSW Civil and Administrative Tribunal held that the complaints of discrimination on the basis of age and disability were sustained. Although the case was based on Mr McEvoy’s word against Acorn’s, the Tribunal was in favour of Mr McEvoy’s account of events.

The Tribunal noted that Mr McEvoy gave sworn evidence about his account of the termination meeting, which was tested on cross examination and supported by the consistent evidence of two former Acorn employees. In contrast, Acorn did not summons Ms Kelly to testify, instead relying on her unsworn statement which was unable to be tested on cross examination. Further, documentary evidence that Acorn relied on to show that Mr McEvoy was underperforming did not, in anyway, undermine his credibility as a witness, and therefore was irrelevant.

Based on Mr McEvoy’s account of the termination meeting, the Tribunal was satisfied that Ms Kelly ‘‘nominated’’ Mr McEvoy’s age as one of the reasons why he did not “fit the culture”, and that she further ‘‘nominated’’ his perceived poor hearing and “broken back” as additional reasons why his employment should be terminated. The alleged ground did not need to be the sole or primary reason for termination.

The Tribunal was therefore satisfied that the age group to which Mr McEvoy belonged, his actual back injury, and his actual and presumed hearing impairment, separately and in combination, were material reasons for Ms Kelly’s determination that Mr McEvoy should be dismissed from his employment, as he did not “fit the culture” of Acorn.

Acorn were ordered to pay a total sum of $31,420 in compensation to Mr McEvoy.

Implications for you

Employers should never rely on discriminatory attributes such as age or disability when determining whether an individual fits into a workplace culture. An employee may also pursue an unlawful discrimination claim even if that employee does not have a particular discriminatory attribute (for example, if it is presumed that the employee has a disability when this is not the case). Finally, even if there is no evidence other than the employee’s and employer’s word about discriminatory conduct, a tribunal will still determine an issue based the credibility of the witnesses, surrounding circumstances and failures by either party to not call relevant witnesses (which may give rise to an adverse inference that the reason for the failure was because the evidence of that witness will not be favourable to the relevant party’s case).

McEvoy v Acorn Stairlifts Pty Ltd [2017] NSWCATAD 273 (12 September 2017)