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FWO: Age discrimination will not be tolerated

Monday, 24th November 2014, by Loran McDougall

In today's Workplace Bulletin:

  • Case Law: Employer prosecuted for age discrimination
  • When you can lawfully discriminate based on age
  • How to conduct a sound and procedurally fair workplace investigation
Dear Reader,

As the age of retirement increases, employees are increasingly facing age discrimination. According to the Fair Work Ombudsman (FWO), age discrimination is in the top five types of discrimination that they investigate.

In the workplace, age discrimination occurs when an employee is treated less favourably than others in the workplace who are in the same or similar circumstances, because of their age. It can occur to an employee at any age.

If you disadvantage an employee based on an assumption you make about them due to their age, you will be in breach of anti-discrimination laws.

In today’s bulletin, Charles Power looks at the FWO’s first prosecution relating to age discrimination, which occurred earlier this year. The case, according to Fair Work Ombudsman Natalie James, serves as a warning to employers that age discrimination will not be tolerated.

And while I’m on the topic, if you receive a complaint of discrimination from one of your employees, you should conduct an investigation into the allegation. This will help you to manage your legal risk. However, workplace investigations can be demanding and require a certain level of skill and judgement.
In the coming weeks we’ll be launching a new resource to provide the guidance you need to ensure any workplace investigation you undertake is sound, procedurally fair and defensible.

Keep an eye on your inbox for further updates.
Until next time,

Jessica Oldfield
Loran McDougall
Workplace Bulletin
When it comes to dismissing an employee, knowing the
correct procedure is essential.

Case Law: Employer prosecuted for age 


by Charles Power
Editor-in-Chief, Employment Law Practical Handbook

In Fair Work Ombudsman v Theranvanish Investments Pty Ltd & Ors (2014), a 64-year old restaurant employee was told by his employer that his employment would be terminated on his 65th birthday. The employer stated in a letter to the employee that the company’s policy was not to “employ any staff that attains the retirement age, which in your case is 65 years.”
Shortly before this, the employee had returned from long service leave and had been told that his position would change to part time. The employee had raised a number of concerns with his employer, including concerns regarding his pay.

The employee, who had worked for the employer since 1996, resonded to his notice of termination by saying, “my effectiveness as a food and beverage attendant when I turn 65 is no less than my effectiveness at the age of 64”. 

He also noted that his termination was “irrefutably an act of blatant discrimination”.

When the employer then avised the employee that its position had not changed and that it did not wish to corresond with him further, the employee lodged a complaint with the FWO.

The FWO found that the employer’s actions were a contravention of the Fair Work Act 2009 (Cth)provisions that make it unlawful to discriminate against an employee based on their age. The company was fined $20,790 and ordered to pay the employee $10,000 in compensation. The company’s joint directors were penalised a further $4,180 each. 

When you can lawfully discriminate based on age
You may discriminate against a person based on their age if they cannot fulfill the inherent requirements of a job because of their age. To ensure that such discrimination is lawful, you must:
  • be sure that the person cannot perform the essential tasks of the job; and
  • determine that any inability to perform the essential tasks of the job is due to the person’s age, i.e. not because they lack training, qualifications or experience.
Don’t forget that age discrimination also applies to young employees. However, it is not discriminatory to recruit employees under the age of 21 because their wage entitlements are less, as the Parliament has determined that there is a direct and measurable benefit for the employer to hire a younger employee.
Charles Power
Charles Power

Employment Law Practical Handbook

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