Adverse action cannot be assumed
Heather v Hikvision Australia Pty Ltd (2021)
Mr Heather was offered the position of Business Development Manager with Hikvision Australia Pty Ltd (Hikvision). However, the offer was rescinded shortly after Mr Heather provided his proof of identity information, which disclosed his age of 71 years. Mr Heather commenced general protection proceedings, alleging that adverse action had been taken against him because of his age.
In the Federal Circuit Court proceedings, Hikvision argued the reason Mr Heather’s offer had been rescinded was because Hikvision had decided to change its business strategy after receiving its mid-year review.
Mr Heather argued that Hikvision had not discharged its onus of proof as it had not produced the mid-year review report to support the evidence being given by the CEO and other employees.
The Federal Circuit Court found for Hikvision, finding that the business had changed its strategy and had not unlawfully rescinded Mr Heather’s offer. The Court said this was supported by the fact that Hikvision had not employed another person in the Business Development Manager position.
The Court found that just because the offer had been withdrawn after Mr Heather had disclosed his age did not automatically mean adverse action had occurred. The Court stated such a conclusion was like saying the crow of the rooster had caused the sun to rise.
This case demonstrates the importance of giving clear evidence about the reasons for decisions when defending general protection claims, to discharge the onus of proof.
Please note: Case law is reported as correct and current at time of publishing. Be aware that cases in lower courts may be appealed and decisions subsequently overturned.
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