Anti-Discrimination Board of NSW

​Beware of "cultural fit"

Legal Case: Age discrimination 

Published: 23 October 2017

Employers must take care to avoid discrimination when considering who will fit well in their workplace. In a recent case in the NSW Civil and Administrative Tribunal,a 62-year-old was discriminated against and eventually dismissed because of his age.

The facts

Mr McEvoy, who worked as a telephone sales advisor, was dismissed from his job after a disagreement with his manager. He had recently had a ruptured disc, but had been cleared by his doctor to return to work.  

He claimed that his manager said she didn't believe him, because he was 'hobbling around the office, limping and taking painkillers'. She said he didn't 'fit the culture', because he was too old. He was twice the age of most of his colleagues.

The manager also accused him of being deaf, because when she yelled at him across the office, or swore at him in an effort to get a reaction, he didn't reply. He said he had heard her, but didn't respond to being yelled at. He also pointed out that his job involved working on the phone, not lifting heavy objects. After this discussion he was told to get his things and leave the office immediately.

The issues

Was Mr McEvoy treated less favourably than others in a similar situation because of his age or disability?

The  arguments

Two former colleagues supported Mr McEvoy's claim of less favourable treatment. They, too, had been dismissed without any understandable reason. They gave evidence that the company's workplace was unprofessional, with rude jokes and swearing being commonplace.

One of the witnesses, who had been Mr McEvoy's manager, said that he was 'the best and most consistent performer' in the office. The other had been dismissed for lack of commitment after asking for a half day's unpaid leave each month to take her father for cancer treatment.

The employer denied these claims and said that Mr McEvoy was sacked for performance problems, including lack of product knowledge and time taken on calls. However the manager who dismissed him was not available to give evidence because she had since left the company.

The only documentary evidence provided was the Centrelink Employment Separation Certificate given to Mr McEvoy, which stated that the reason for his termination was 'unsuitability for this type of work'. 'Unsatisfactory work performance' was another option on the certificate, but this was not selected.

The decision

The NSW Civil and Administrative Tribunal noted that Mr McEvoy had given sworn evidence which was supported by two witnesses. He was also consistent under cross-examination. The company, on the other hand, had provided little assistance.

The Tribunal found that Mr McEvoy had been discriminated against. It was satisfied that because of his age and presumed disabilities, he was treated less favourably than a person not in his age group or without his disabilities would have been in the same or similar circumstances.  

He was awarded $31,420 for lost income and for depression and anxiety suffered as a result of his dismissal. The amount was affected by the fact that he had since got another job.

Take home points

  • A person with a disability must not be dismissed unless they are unable to perform the inherent requirements of their job, and there are no adjustments that you can make to assist them without causing you unjustifable hardship.
  • If you believe that a person is incapable of performing the inherent requirements of their job, you will need medical evidence of this, as well as records of any adjustments you have made or considered to assist them. 
  • If you are terminating a person's employment because of poor performance, you need records detailing the nature of the performance problems and the efforts that you have made to assist the person to improve.
  • Considering whether a person is a good 'cultural fit' for a workplace must not involve discrimination on the basis of age, sex, disability, race, homosexuality, marital status, carer's responsibilities or transgender status.

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

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