The background

This is a general protections claim brought by Lance Heather (Mr Heather) against Hikvision Australia Pty Ltd (Hikvision) under the Fair Work Act 2009 (Cth) (Act).

Mr Heather was offered employment with Hikvision in the position of business development manager (BDM). Upon request, Mr Heather sent Hikvision a copy of his passport, which revealed that he was 71 years of age. Hikvision subsequently rescinded the offer of employment.

Mr Heather argued that Hikvision had taken adverse action against him by refusing to employ him due to his age and that this was a breach of the general protections provisions of the Act.

Hikvision argued that the reason for rescinding his offer of employment was a change of business strategy. Hikvision maintained that it was preferable to hire an internal candidate who could focus on existing clients that purchased products at the entry and mid-level, rather than attempting to win new clients who might buy products at a higher level.

Under the Act once an adverse action is established (i.e. rescinding a job offer) and a protected attribute (such as old age) is established there is a presumption the two things are connected.

In Issue

The FCCA was required to determine whether Hikvision had overturn the presumption it did not employ Mr Healther because of, or reasons including, his age.

The decision at trial

Judge Riley accepted the oral evidence provided by Mr Liu, Managing Director of Hikvision that Hikvision now has three BDMs working with entry and mid-level clients and no BDM working with high-level clients. This was a critical fact as it meant that Hikvision did change its business strategy. Moreover, the fact that Hikvision did not employ the second ranked candidate in the recruitment process demonstrates that Hikvision did walk away from the recruitment process.

Judge Riley further observed that while Mr Heather may have considered that the job offer was withdrawn after he disclosed his date of birth, “that juxtaposition of events does not mean that one caused the other” as there could have been many events occurring in the background which Mr Heather was not privy to.

It was further proposed by Judge Riley that if Hikvision really had rescinded the offer of employment due to Mr Heather’s age, then it was expected that it would have retained a younger individual to assume such role to win clients in the high-level market.

In the circumstances, Judge Riley was not persuaded that Mr Liu, as the decision-maker was cognisant of Mr Heather’s age when he decided to rescind the offer of employment. Accordingly, the FCCA found that Hikvision had overturned the presumption and successfully defended the case.

Implications for you

Employers must ensure that they do not engage in discrimination in employment based on age. However where age is unknown to a decision maker or not a reason for a decision employer should feel comfortable evidence will prevail and overturn the presumption in the Act that an adverse action and a protected attributed are connected resulting in a contravention of the general protections provision.

As always it is important to document decision making internally as such evidence will assist in defeating employee claims.

This article was co-authored by Lucinda Touma.

Heather v Hikvision Australia Pty Ltd [2021] FCCA 196