A 62-year-old telemarketer, who was sacked by his manager because he claims he was told he “had a broken back, was deaf and… too old”, has been awarded $31,420 in compensation. The NSW Civil and Administrative Tribunal (NCAT) found Acorn Stairlifts Pty Ltd had probably discriminated against Fenton McEvoy when his manager summarily dismissed him on 28 February 2014.
McEvoy, an experienced telephone salesperson, told NCAT that former national sales manager Mike Waisome employed him 16 weeks before his dismissal. Waisome told him repeatedly that he had a good sales record and was one of his best employees. Later, McEvoy and two other employees hired by Waisome, Ian Wright and Jennifer Sayhoun, were called to Waisome’s office and told “they are out to get you”. Soon after that meeting Waisome was dismissed.
McEvoy said a week after Waisome’s dismissal his new manager, Laura Kelly, told him he was “being let go because you don’t fit the culture here”.
When asked what she meant, Kelly told McEvoy that he should look at the ages of other colleagues who worked alongside him. “You’re too old,” she allegedly said.
Kelly also criticised McEvoy’s “broken back” which meant he “hobbled around the office”. McEvoy had a ruptured disc but a medical certificate had cleared him for work.
Not deaf – he just ignored his manager when she yelled at him
Kelly said McEvoy was deaf and never responded when she yelled at him across the room. McEvoy told NCAT that he explained to Kelly that he could hear but ignored her because he did not appreciate her yelling at him. McEvoy added that swearing and yelling were constant in the office and that his younger colleagues seemed to have a poor work ethic.
NCAT was told that Wright was sacked the same day as McEvoy while Sayhoun was dismissed a month later.
Waisome, Wright and Sayhoun gave evidence supporting McEvoy.
Employer blamed poor performance
Acorn denied firing McEvoy because of his age or injury, blaming his employment record. Acorn said it could not locate Kelly to give evidence but produced an unsworn statement denying the allegations. Acorn said it had lost track of Kelly after she left under a “confidential settlement unrelated to McEvoy’s dismissal” in 2015.
In her written statement, Kelly said she dismissed McEvoy because she did not believe he was familiar with Acorn products and was not doing the work expected of him.
NCAT Principal Member Anne Britton and Member Steven Davison said it was a case of one person’s word against another but they found McEvoy and his witnesses honest and reliable; because they had given sworn evidence while Acorn relied on Kelly’s unsworn statement, it was appropriate to give more weight to McEvoy’s account of his dismissal.
“We are satisfied the age group to which McEvoy belonged, his actual back injury, and presumed or actual hearing impairment were material reasons for Kelly’s assessment he did not fit the culture and was unsuitable to remain in Acorn’s employment.”
They awarded McEvoy $16,420 for lost income from his dismissal until he started a new job; and $15,000 for his anguish at being summarily dismissed.
(McEvoy v Acorn Stairlifts Pty Ltd , NSWCATAD 273, 12 September 2017)