An employee was unlawfully discriminated against by his employer when he was dismissed due to having had a bad back, poor hearing and for being "too old", a NSW tribunal has ruled. It was determined that discrimination had occurred on the grounds of both age and disability.
The employee was engaged with Acorn Stairlifts Pty Ltd as a telephone sales advisor. Approximately 4 months after commencing his employment, the 62-year-old employee was told that his employment was terminated. The employee’s manager reportedly told him that:
· He did not fit the culture of the workplace, largely due to him being twice the average age of other employees,
· He had a "broken back", and
· He was deaf.
The employee had suffered from a ruptured disk in the month prior to his dismissal and the manager advised that she did not believe that a doctor had cleared him to return to work as he had been "hobbling around the office, limping and taking pain killers".
After the employee pointed out to his manager that his job required him to work on the phone, rather than undertaking physical activity such as manual handling, the manager further told him "you're also deaf” and that “when I yell at you across the office you never answer me". When the employee explained that while he wore hearing aids, he did not respond to being yelled at and that he heard every word, his manager reportedly replied that she needed to stand right next to him and "had to swear” at him but that he still didn’t respond.
The employee was further told that despite having achieved strong sales figures, and having been described as being “the best and most consistent performer", his termination had nothing to do with his results. Rather he was told that "we can't have people like you hobbling all over the office," and that "we think you're going to turn around and use your back for a workers comp claim."
The employee was then reportedly told to take his things and leave immediately.
The employee’s claim was supported by two colleagues, both of whom had also been dismissed from Acorn Stairlifts Pty Ltd and had been given no understandable reasons for their termination. In their statements, both colleagues confirmed that the workplace was “chaotic, stressful and totally unprofessional", and one in which offensive jokes and swearing were accepted.
In responding to the allegations made by the employee, Acorn Stairlifts Pty Ltd claimed the employee was dismissed due to concerns regarding his performance, and denied allegations that rude jokes, swearing and offensive language were common in the workplace.
While the accused manager, who had since ceased employment with the company for undisclosed reasons, did not provide evidence in the proceedings, the company did provide a statement that had been signed by the manager a week before the hearing. In this statement, the manager cited that she had raised a number of concerns with the employee during the course of his employment, including a lack of product knowledge and excessive time spent on calls.
In her statement, the manager did not address the complaints made regarding discrimination based on the employee’s age and his back injury, and no reference was made as to how the employee had been notified of his termination. The manager did however deny discriminating against the employee based on his hearing.
In making its determination, the Tribunal Principal Member and General Manager acknowledged that this was a "case of word against word" between the two parties. However it was noted that the employee had provided sworn evidence which was consistently backed by two witnesses and through cross-examination.
In comparison, the accused manager chose not to attend the trial and had failed to address a number of the claims that had been made by the employee. It was deemed that the reports provided by Acorn provided little assistance in being able to assess the respective claims made by the parties about the employee's performance.
While the employee had sought damages, an order that the company train its employees in workplace harassment and discrimination, and a formal apology from the company. The Tribunal decided:
· Not to order training, given the amount of time that had passed since the events and the lack of information about current company policies.
· Not to order an apology as it accepted that none of the relevant managers continued to be employed at the business.
· To award $31,420 to the employee based on lost wages and general damages, finding the circumstances of his termination had also contributed to later depression.
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