Part 3: End of the line – Older workers and discrimination on termination of employment

In Part 1 of our blog series on older employees, Selfie time – Video “Snaplication and the potential for age discrim..., we looked at age discrimination in the recruitment process.

At the other end of the employee lifecycle, older employees often face ageism where they are perceived to be coming to the “end of the line” and are “ready for retirement” or forced to retire in order to bring in “young blood.”  

The Australian Human Rights Commission 2016 “Willing to Work: National Inquiry into Employment Discrimination Against Older Australians and Australians with Disability” (the Inquiry) reported that 27% of people over the age of 50 had recently experienced age discrimination in the workplace.

Anti-discrimination legislation

Federal and State anti-discrimination legislation prohibits direct and indirect discrimination on the basis of a protected attribute such as age, gender or disability, in employment.

Age discrimination occurs where a person treats (or proposes to treat) another person less favourably than they would treat someone else of a different age because of the:

  • age of the person;
  • a characteristic generally attributed to a person of that age; or
  • a characteristic that is imputed to persons of that age.

In the recent decision of McEvoy v Acorn Stairlifts Pty Ltd [2017] NSWCATAD 273, an employee was successful in his claim that he was directly discriminated against on the basis of his age and disability under the Anti-Discrimination Act 1977 (NSW) when his employment was terminated.  

Mr McEvoy was 62 years old when he commenced employment with Acorn Stairlifts (Acorn) on 7 November 2013 as a telephone sales advisor. On 28 February 2014 he was invited to a meeting with Acorn’s National Sales Manager (the Manager) and his employment was terminated. Mr McEvoy made a complaint to the NSW Anti-Discrimination Board alleging unlawful age and disability discrimination.

Mr McEvoy alleged that at the meeting the Manager advised him that he was dismissed because he “did not fit the culture”, with other Acorn employees being between 25 to 30 years of age. The Manager also raised concerns about Mr McEvoy’s non-work related back injury, stating that he had been “hobbling around the office, limping...” and suggested that he would make a claim for workers compensation for the injury. The Manager also mentioned Mr McEvoy’s poor hearing, claiming that he had not heard her when she yelled across the office at him, notwithstanding that he wore hearing aids.

Acorn denied the allegations and submitted that Mr McEvoy’s employment was terminated because of issues relating to his work performance. Acorn relied upon a signed statement from the Manager in which she stated that she had a number of concerns about Mr McEvoy’s performance and denied that she discriminated against Mr McEvoy on the basis of his hearing impairment. Acorn also relied upon evidence relating to a report from an Acorn business partner about the telephone conduct of someone who identified himself as Mr McEvoy.

The New South Wales Civil and Administrative Tribunal preferred Mr McEvoy’s account of what occurred at the termination meeting, noting that he gave consistent tested evidence, which was supported by uncontradicted evidence given by two other former Acorn employees. The Tribunal was satisfied that Mr McEvoy’s age group, back injury and presumed and actual hearing impairment were material factors that the Manager considered when deciding that Mr McEvoy “did not fit the culture ”. The Tribunal was satisfied that Mr McEvoy’s age and disabilities were reasons for his dismissal and ordered Acorn to pay $31,420 in compensation to Mr McEvoy.

Fair Work Act 2009

Section 351 the Fair Work Act 2009 (Cth) prohibits employers from taking adverse action against an employee because of a protected attribute, such as age or disability. “Adverse action” is defined to include, dismissing the employee, injuring the employee in his or her employment, altering the position of the employee to the employee's prejudice, or discriminating between the employee and other employees.

In September 2017 it was reported that the Fujifilm Australia Chief Operating Officer (COO) had lodged general protections proceedings in the Federal Court of Australia alleging that Fujifilm Australia took adverse action against him by dismissing him from his employment because of his age. The COO claims that the Chairman made comments about his age and that the company needed a young and strong team. The matter is listed for directions in October 2017.

Lessons for employers

It is unlawful for employers to terminate an employee’s employment because of their age and employers should take careful steps in ensuring that any reason for the dismissal of an employee is not related to their age or from stereotypes associated with age.

Older employees can add immense value to a business and broad assumptions about ability and cultural fit based on age should always be avoided. 

Shane Koelmeyer is a leading workplace relations lawyer and Director at Workplace Law. Workplace Law is a specialist law firm providing employers with legal advice, training and representation in all aspects of workplace relations, employment-related matters and WH&S.

02 9256 7500 | sydney@workplacelaw.com.au

Information provided in this blog is not legal advice and should not be relied upon as such. Workplace Law does not accept liability for any loss or damage arising from reliance on the content of this blog. Where applicable, liability is limited by a scheme approved under Professional Standards Legislation.

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