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.

Below we summarise the case in which the NSW Civil and Administrative Tribunal (NCAT) found in favour of McEvoy (the employee) over Acorn (the employer).Man at desk

The employee, who had a good sales record & was told by his previous manager that he was one the best employees, was critised by his new manager for being “deaf and old”. However, the employee noted that he could hear his manager but did not respond as he did not appreciate her yelling at him across the room.

Acorn denied firing McEvoy because of his age or injury, blaming his employment record. Instead, they relied on an unsworn written statement by the manager, who ceased employment since under a “confidential settlement unrelated to McEvoy’s dismissal”.

The manager’s statement noted the dismissal was because she did not believe he was familiar with Acorn products and was not doing the work expected of him.

NCAT noted 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 an unsworn statement, it was appropriate to give more weight to McEvoy’s account of his dismissal.

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 [2017], NSWCATAD 273, 12 September 2017)