After 12 years of unsuccessful applications with the same employer – five of which were in 2020 alone – this job applicant has been banned from future attempts due to sending “rude” emails, and is accusing the employer of discriminating against him.

Earlier this month, the Victorian Civil and Administrative Tribunal (VCAT) heard the case of a disgruntled job applicant who, in February 2021, claimed his human rights were breached following 12 years of rejected job applications with the same employer, a Victorian-based university.

The applicant also claimed his freedom of expression was impacted when he was told the university would temporarily block his email and prevent him from applying for future roles.

In 2020 alone, the applicant applied for five different roles, which is what his discrimination case rests upon, and claimed various factors, such as his age and race, were the true reasons he wasn’t hired.

The university dismissed these claims, stating the reasons for requesting he no longer apply for vacancies was due to “deeply offensive” and “rude emails” he sent to members of staff (details below).

This case is a pertinent reminder to HR and recruiters that it’s possible to get caught up in legal issues with people who haven’t even been hired, says Will Snow, Partner at Finlaysons Lawyers. 

However, he says the main message HR professionals should take from this is the importance of protecting your existing staff from “unsafe” behaviour.

“It’s also a really good example of the challenges that someone can raise, even when it might appear that they don’t have good grounds to make those sorts of claims,” says Snow.

“When employers come across very persistent applicants, or people who may be persistent complainants, the situation needs to be managed carefully, and a safety lens can help to keep focus.”

The case details

In 2020, between January and March, the job applicant had applied for five positions with the university, including senior business analyst, change manager, support lead, business manager, and IT change and release manager roles – all of which he claimed to have been “amply qualified” for.

The university said of these five available positions, three were withdrawn due to the financial impacts of the pandemic. The other two were offered to candidates who two recruiters deemed to have had skills and experience that were “more desirable”.

On 10 February 2022, VCAT Member Ian Scott determined that five of the applicant’s eight claims of discrimination against his protected attributes would not hold up due to a lack of evidence. They included: discrimination due to his appearance, religious beliefs, political beliefs, employment activity and association with someone who has, or is assumed to have, one of these personal characteristics.

However, due to a lack of evidence supplied by the university in cross examination, Member Scott allowed the claims of discrimination due to age, race and industrial action to proceed, which, if proven, would mean the university was in breach of section 16 of the Equal Opportunities (EO) Act.

“[The university] tried to have the case thrown out [and] they were almost wholly successful,” says Snow.

In order to have a case summarily dismissed, the tribunal determines if the proceedings are:

• • frivolous, vexatious, misconceived or lacking in substance
  • determined to be an abuse of the process in another way

The VCAT documents note that a high threshold must be met in order to quash a discrimination case. In this instance, there was just enough reasonable doubt to continue with the case.

The university talent manager told VCAT that he’d never met the job applicant in person, so wasn’t aware of his age, race or other personal attributes. However, Member Scott sided with the applicant’s view that his race could be inferred by his name, and his age could be deduced by his employment history.

While being able to prove that he was discriminated against due to industrial action will be very difficult – the only evidence provided was that he was outspoken and critical of the university, qualities often synonymous with industrial activity – the fact that this allegation was surrounding a presumption meant the argument wasn’t “entirely hopeless,” according to Member Scott. So that factor, along with race and age, will continue on to another hearing.

“Basically, [Member Scott] accepted everything [the university] said, but it appears that they didn’t call two of the [recruiters] as witnesses, the people who actually made the assessment that he wouldn’t have been a suitable candidate,” says Snow. “And that’s why [Member Scott] said, ‘Look, I’m not satisfied that there’s no case at all about those particular grounds.'”

In saying this, Snow adds that he doesn’t like the job applicant’s chances of winning this case when it’s heard again later this year, because if he sent the emails that led to him being blocked, “many Australian employers who are mindful of their safety obligations… wouldn’t permit him to keep on sending emails that they found rude and offensive”.

“Bad behaviour has consequences… I think [banning the job applicant] was a really sound decision. And it’s a decision that reflects other developments, such as the primacy of safety.

“Employers must ensure a safe workplace for their employees so far as they reasonably can. And if that means blocking a job applicant, then so be it – but those issues may get explored in a new decision.”

Regarding the applicant’s claims that his freedom of expression was shut down when he tried to “impart information and ideas” via his email feedback, Snow points out a “really great observation” made by the tribunal.

“They said [he] had the right to express his opinion, but that didn’t mean [the university] had to listen.”

“Employers must ensure a safe workplace for their employees so far as they reasonably can. And if that means blocking a job applicant, then so be it” – Will Snow, Partner at Finlaysons Lawyers

In VCAT’s decision, Member Scott stated, “It cannot be said that, if one person refuses to open their door to hear the person’s views, that that person’s right to freedom of expression has been denied by that person for there are always other doors to knock on.”

The job applicant’s “deeply offensive and rude emails”

So what was allegedly said in these email exchanges?

According to the Herald Sun, when the case was first heard late last year, counsel for the university read out some of the job applicant’s email responses that were sent after receiving his rejection letter. One email is reported to have stated:

“The [university’s] reputation is worthless … your title of senior talent acquisition adviser is such delicious irony. I cannot imagine anyone in more desperate need of acquiring some talent.”

To this, the university talent manager is reported to have responded by apologising for their late response and saying: “I understand recruitment processes are often frustrating and disappointing and can lead to feelings of deflatement [sic] especially when there were no clear reasons why you weren’t selected.” 

The applicant is reported to have responded with the following:

“I care not for any of your fake, insincere apologies… I surmise any delay in response is more likely to be due to the fact it took you an eternity to figure out how to send an email.

“Your miserable and paltry attempt to respectively justify your actions only serve to highlight your failures. It was a chore to grimly ingest your stilted and awkward writing style with its atrocious grammar to go with the droning dribble and spin of those of your ilk specialise in all designed to prop up your vacuous puffed and hollowed-up ego…

“The only insight you have managed to provide by your pittling and putrid pretext in your plea for absolution is just how lazy and neglectful you are in your duties.

“The fact that you get paid for your slack performance is a disgrace, its [sic] demonstrably obvious that all my applications to [the university] have been treated with contempt and you hold me in disdain… Furthermore, in any further contact, you will refer to me as Mr [applicant’s last name] and adopt a far more civil, respectful and professional communication style. 

“I would also add that your signature block and footer is just virtue signalling and tokenistic worthless dribble and serves only to serve your delusions.”

“So after this, the manager of the area essentially said, ‘Look, your behaviour does not align with our organisation’. And that appears to be when they banned him,” says Snow.

The university’s talent manager informed the candidate that any future applications from him would not be considered as his “attitudes, values, judgement and maturity are fundamentally misaligned to the organisation”. 

The job applicant rejected claims that his emails were abusive, stating they might have been “mocking and sarcastic” but no more so than comments “made in the parliaments of this country or what we can read in national newspapers,” the Herald Sun reported.

Handling rejected candidates

Putting aside the “offensive” emails for a moment, it’s worth unpacking the applicant’s claims that his 12 years of job applications were not fairly assessed.

Rejecting a candidate due to cultural fit issues can be tricky. Without offering concrete, data-backed explanations for the rejection, it can open the door to assumptions being made about the ‘real’ reason behind their unsuccessful attempts. 

The risk of this happening is low, says Snow, but this case is proof that it can occur from time to time.

Where possible, it’s best to try and offer comprehensive feedback to the rejected candidate. In an effort to soften the blow and (hopefully) leave them with a positive impression of your organisation, you could:

• • Be really honest. Outline the skills/experience of the person you chose over them, so it’s clear to the jobseeker why they missed out and what they could do to improve in the future.
  • If they were one of your top picks but narrowly missed out, communicate this to them.
    It might mean they’re more inclined to apply for appropriate roles in the future.
  • Try to be prompt with your decision. Leaving hopeful jobseekers waiting for weeks and weeks, or breadcrumbing them, could potentially cause negative sentiment to brew, therefore making them more likely to lash out. 

But some vacancies can attract hundreds or thousands of job applicants. It’s not feasible to respond to each one. So what can you do instead?

• • You could include a note in the initial job advertisement which states that while job applicants can request feedback, it’s not guaranteed that the employer will have the capacity to provide it.
  • You can include details of your values around diversity and inclusion in the job advertisement so candidates are aware that you’re striving to hire people from various backgrounds.

If in doubt, employers should stick to the language that the university used in this case, says Snow – i.e. that there were “more suitable job applicants”.

“That’s the wording where employers are always on the safest ground,” he says.

“If you can demonstrate that the person who got the job had more experience, interviewed better, was more prepared, or was just simply a better candidate based on some objective factors, then someone who’s missed out will never really be able to successfully proceed with [a discrimination] application.”

“Australian employers who are mindful of their safety obligations… wouldn’t permit him to keep on sending emails that they found rude and offensive” – Will Snow, Partner at Finlaysons Lawyers

Snow says, in this particular case, the employer may have acknowledged the risks of shutting the door on the applicant’s future job applications, but may then assessed there to be a greater risk of him potentially exhibiting toxic behaviours in the workplace had he been hired. The final decision may shed more light on this point, says Snow.

Another lesson for HR and employers from this case is that even if you feel confident in your case, it’s always best to be over prepared with evidence and official record keeping, and ensure you have enough witnesses to back up your perspective.

“In hindsight, if they had called those [recruiters in as witnesses], then maybe the whole thing would have been thrown out,” says Snow.

“I think the main lesson here is that [the university] was very patient and they’d had enough. The only other way of doing it would’ve been just not responding at all, but then people can draw an inference from silence as well.”

VCAT will now assess the discrimination claims further and the applicant could potentially claim economic loss (e.g. argue he’s owed a years’ pay) as well as general damages.

“That’s an amount for hurt, humiliation and distress, which in discrimination matters can often be the larger component of [a payout]… For example, in a [2014 case] an amount of $100,000 was awarded, which has really changed discrimination matters quite significantly.”

However, Snow says this case will be an “uphill battle” for the job applicant unless he can persuade VCAT that his age, race or industrial activity were the operative factors in being blocked and not being offered jobs, rather than because of his own behaviour or there being more suitable candidates.

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