Employer who told 61-year-old employee they were “too old” for the job ordered to pay compensation

In March 2021, a construction company was ordered to pay $3,000 to a construction worker for discriminating against him on the basis of his age.

As most employers are aware, it is unlawful to discriminate against a person on the basis of their age. Importantly, this is true for an employer both in respect of its employees as well as any prospective employees.

It is entirely lawful for an employer to consider whether a prospective employee can safely perform the duties of a role. However, the following case is an example of the risks of inappropriately using age as the sole consideration when assessing a person’s capacity to perform a role.

The facts

Adept Underpinner Pty Ltd (Adept) advertised for a casual construction position in late 2019. The worker called the director of the company wanting to discuss the role in further detail.

When the worker advised the director that he was 61 years old, it was met by the director with laughter and derision.

The director told the worker that, “you would have a heart attack and I don’t want that on my site”. He continued on to state that he had “young ones run away from the workload” and “you are too old”.

Left feeling “humiliated, ridiculed and diminished”, the worker made a complaint to the Anti-Discrimination Board in New South Wales.

Anti-discrimination laws

Section 49ZYB of the Anti-Discrimination Act 1977 (NSW) makes it unlawful for an employer to discriminate against a person on the ground of age in determining who should be offered employment.

There is a similar protection within s.351(1) of the Fair Work Act 2009 (Cth) which prohibits employers from taking adverse action, such as denying a prospective employee a role on the basis of their age.

How the matter was decided

Ultimately, the matter was progressed to the NSW Civil and Administrative Tribunal (NCAT) which decided in favour of the worker. In such cases where the dispute concerns a conversation between two persons with no third-party witnesses, a decision-maker will look to matters such as the reliability of each person to determine the matter.

In this case, the tribunal was persuaded that the account of the worker was accurate due to:

• a contemporaneous record of the call– the worker made a record of the call the following day;
• a formal complaint made without undue delay – the worker filed a complaint with the Anti-Discrimination Board within a week; and
• the brash and confrontational communication style of the director – the evidence given by the director was described as having the “flavour of the kind of language” described in the complaint.

The position of Adept was further weakened by correspondence from its lawyers to the worker. Adept’s lawyers wrote that the worker “cannot use his age as a shield to deflect from his lack of experience and failure to make an application for the advertised position”. The letter went on to described Adept’s need for an experienced labourer rather than a person with the “bits and pieces labouring roles” performed by the worker.

It was found that this language was offensive and that the criticisms of the worker’s experience were entirely unnecessary to respond to the complaint made.

Ultimately NCAT found that Adept’s conduct contributed to the worker ceasing to pursue higher-paying construction work. The worker was awarded $1,490 for economic loss and $1,500 for non-economic loss. Adept was also ordered to pay a further $750 in aggravated damages for the hurt and distress caused by the solicitor’s letter.

Takeaways for employers

Most employers would be aware that showing respect and courtesy towards others will prevent the issues that occurred in this case. However, there are still broader learnings that employers can take from this case, including the importance of:

• Assessing each person’s application or interest in an advertised role on its merits, and their capacity to perform the role, without bias or prejudice.
• Using considerate language when advising a prospective employee of an unsuccessful application.
• Making and retaining record of actions and conversations that could later be the subject of litigation such as dismissal meetings, advising of an unsuccessful application or a complaint about behaviour. These records can often have significant weight attributed as evidence.
• Training decision-makers within the business in the requirements of anti-discrimination laws. Decision-makers within a business being appropriately trained in the requirements of anti-discrimination laws.

Should your business require assistance with appropriate workplace behaviours training contact NRA Legal on 1800 572 679.