Age Discrimination
Discrimination based on age, whether young or old, is unlawful. Age discrimination can often be subtle. Many people over 50 have been treated less favourably because of their age, which is illegal. MKI Legal has experience assisting employees to lodge age discrimination claims and obtain financial compensation.
Age Discrimination in the Workplace
Age discrimination means being treated less favourably at work because of your age, or because of a characteristic people associate with your age, such as being thought slow to learn new technology, or too inexperienced for responsibility. It protects workers of every age, young and old.
It is often subtle. It shows up in job advertisements asking for recent graduates or digital natives, in who is chosen for training and promotion, in who is selected for redundancy, and in pressure to retire. Many people who experience it never raise it. You do not have to accept it.
When Can Age Discrimination Occur?
Age discrimination is difficult to recognise even by people who are victims of it. It can happen at the recruitment and selection stage and it can also happen when the employer offers terms, conditions, and benefits as part of employment. It may also occur when employers are considering or selecting employees for training, further education, transfer or promotion and when considering whom to select for redundancy or dismissal.
Who Is Protected Against Age Discrimination?
Three laws protect you from age discrimination at work: the Age Discrimination Act 2004 (Cth), the general protections in s 351 of the Fair Work Act 2009 (Cth), and Part IVB of the Equal Opportunity Act 1984 (WA).
They apply to full-time, part-time and casual employees, including those on probation, apprentices, trainees and people employed for a fixed period or task, and to job applicants.
Contractors and commission agents are covered by the Age Discrimination Act and the Equal Opportunity Act. The general protections in the Fair Work Act do not apply to contractors.
What Is Direct Age Discrimination In The Workplace?
Section 14 of the Age Discrimination Act 2004 provides that direct age discrimination is present when an employer (also called a discriminator) treats or proposes to treat a job seeker or an employee (called the aggrieved person) less favourably:
- Than others whose circumstances are the same or not materially different except for the age of the aggrieved person; or
- Because the aggrieved person possesses characteristics that are generally true of persons of the age of the aggrieved person or because the aggrieved person possesses characteristics which are generally imputed to persons of the age of the aggrieved person.
What Is Indirect Age Discrimination In The Workplace?
Under section 15 of the Age Discrimination Act 2004, indirect discrimination exists when the employer or discriminator imposes or proposes to impose a requirement, condition or practice that is not reasonable under the circumstances and will likely result in some disadvantage to the aggrieved person.
Some examples of discrimination are those acts of employers or managers that limit the opportunities for employment, training, or promotion of employees because of the employee's age. Other examples are when employers or managers vary the terms or conditions of work or compensation based on the age of the employee. Other examples are making jokes or derogatory comments about the employee because of his or her age.
What Is Age Discrimination Through Adverse Action?
The Fair Work Act 2009 protects employees from discrimination in the workplace when the employer takes adverse action against an employee or prospective employee because of their age.
Adverse action includes when an employer threatens or organises to dismiss an employee, injure an employee, alter the employee's position, discriminate between one employee and other employees, refuse to employ a prospective employee or discriminate against a prospective employee in the terms and conditions offered.
Once you show the adverse action and your age, the employer must prove that age was not a reason for what it did (s 361). Action taken because of the inherent requirements of the particular position is not unlawful (s 351(2)(b)), so an employer that can show a genuine age-related inherent requirement has a defence.
What Is Age-based Harassment?
Workers can also experience age discrimination from colleagues at work who tell jokes, make derogatory comments or taunts, ask intrusive questions or send hateful, offensive or bullying emails or text messages about one's age or characteristics stemming from one's age.
Bullying co-workers can include yelling or screaming, intimidating or humiliating them, giving them impossible jobs or meaningless tasks, withholding information vital for work performance, excluding or isolating them.
Depending on the facts, conduct like this can be age discrimination, bullying, or both. An employer can be held responsible for what its employees do at work unless it took reasonable steps to prevent it, which is much harder to show if it has no policy against this behaviour or ignored complaints. See Bullying.
Where Can An Employee File A Complaint For Age Discrimination?
There are three routes. Each has its own time limit and remedies, and in most cases you can use only one of them for the same conduct.
Fair Work Commission (general protections)
For employees of national system employers. If you were dismissed, lodge within 21 days. The Commission holds a conference; if the matter does not settle, it can go to the Federal Court or the Federal Circuit and Family Court. The employer must prove age was not a reason.
Australian Human Rights Commission (Age Discrimination Act)
For employees, contractors and job applicants, and suited to indirect discrimination. The Commission tries to conciliate the complaint. If it does not resolve, it can go to the Federal Court or the Federal Circuit and Family Court.
WA Equal Opportunity Commission (Equal Opportunity Act)
For anyone working in Western Australia. The Commissioner investigates and conciliates; if it does not resolve, the State Administrative Tribunal decides it.
You cannot generally run the same complaint in more than one of these at once, so the choice matters. Compare them on our page on where to make a discrimination complaint.
If you work for the WA public sector, a WA council or a business that is not a company, general protections is usually not available, but if you were dismissed you can bring an unlawful termination claim within 21 days, and the other two routes are open.
Where Can A Contractor File A Complaint For Age Discrimination?
A contractor can complain to the Australian Human Rights Commission under the Age Discrimination Act and, if it is not resolved, take it to the Federal Court or the Federal Circuit and Family Court. A contractor working in Western Australia can instead complain to the WA Equal Opportunity Commission. Check first whether you are really a contractor: many people labelled contractors are employees in law.
Are There Time Limits For Filing A Complaint For Age Discrimination?
Yes, and the shortest one comes first.
Dismissal: 21 days. A general protections application about a dismissal must reach the Fair Work Commission within 21 days after the dismissal took effect (s 366 of the Fair Work Act). If the conference does not resolve it, the Commission issues a certificate and you have 14 days to start in court (s 370).
Other adverse action. If you were not dismissed, the 21-day limit does not apply, but do not delay: get advice on the time limit for your situation.
Australian Human Rights Commission: 24 months. The President may end a complaint lodged more than 24 months after the conduct (s 46PH(1)(b) of the Australian Human Rights Commission Act 1986 (Cth)). After the complaint is terminated, you have 60 days to apply to court (s 46PO(2)).
WA Equal Opportunity Commission: 12 months. A complaint must be lodged within 12 months of the conduct, unless you show good cause for a late complaint (s 83 of the Equal Opportunity Act).
What Remedies Are Available If I File A Complaint?
Most complaints resolve at conciliation, where the parties can agree on any outcome: an apology, compensation, reinstatement, a reference, a change of policy or access to a job opportunity. Every case turns on its own facts, and we cannot predict an outcome before we have looked at yours.
If a complaint under the Age Discrimination Act goes to court, s 46PO(4) of the Australian Human Rights Commission Act allows the Federal Court or the Federal Circuit and Family Court to:
- Declare that the discriminator has committed unlawful discrimination and direct them not to repeat or continue;
- Order the discriminator to perform acts to redress loss or damage suffered by the aggrieved party;
- Order the discriminator to re-employ a dismissed employee or employ the applicant or vary the terms and conditions of a contract of employment or employment agreement to redress any loss or damage suffered by the aggrieved party;
- Require the discriminator to pay the aggrieved party damages to compensate for loss or damage suffered by the aggrieved party because of the conduct of the discriminator.
Special damages may be ordered paid to the aggrieved party to compensate quantifiable economic loss such as past and future lost wages. General damages may be ordered paid to compensate for the hurt, humiliation or loss of dignity suffered by the aggrieved party.
In a general protections case, the court can also order reinstatement, compensation and penalties against the employer and people involved. Under the Equal Opportunity Act, the State Administrative Tribunal can award damages of up to $40,000 (s 127).
An Example From Western Australia
Dewan v Main Roads WA (2005) EOC 93-362
In this case, a 45-year-old engineer lodged a complaint for indirect age discrimination against Main Roads WA because it advertised positions for 'recent graduates'. The Western Australian Equal Opportunity Tribunal held that this job advertisement was not an act of indirect discrimination. There was no demonstrated intention to recruit only young employees because new graduates of engineering can be of any age group.
Can An Employer Impose A Compulsory Retirement Age?
Generally, no. For most jobs, forcing an employee to retire, or dismissing them, because they have reached a particular age is age discrimination and can also be adverse action under the Fair Work Act. Being asked repeatedly when you plan to retire, or being managed out because of your age, can be too.
There are exceptions:
- Inherent requirements. If a particular age is genuinely an inherent requirement of the position, acting on it is not unlawful. In Qantas Airways Limited v Christie [1998] HCA 18, the High Court held that a pilot's dismissal at 60 could be justified where international rules prevented pilots over 60 from flying into some countries' airspace. Such cases are the exception.
- Laws that require it. Some offices have a retirement age set by law. For example, the Constitution requires federal judges to retire at 70.
- Voluntary schemes. Genuinely voluntary retirement, phased-in retirement and retirement incentive schemes are allowed under the Equal Opportunity Act (s 66ZN).
An offer of a retirement package is not unlawful in itself. Pressure to accept one, or consequences for refusing, may be.
Can An Employer Pay Young Workers A Lower Rate Of Pay?
Yes, within limits. Paying youth wages to workers under 21 is exempt from the Age Discrimination Act (s 25). Many modern awards set junior rates as a percentage of the adult rate, depending on age.
The exemption covers the rate of pay, not everything else. Paying a junior rate is lawful; refusing to promote a young worker, or dismissing them to hire someone younger and cheaper, may not be. And the junior rate must be the correct award rate for your age: paying less than that is an underpayment. See I've Been Underpaid.
Apprentices and trainees are paid under their own award rates, which reflect the training they receive.
How Can MKI Legal Help?
If you feel you have been discriminated against at work because of your age, whether you are 19 or 64, we can tell you which route suits you and which deadline comes first. We can have a free, no-obligation and confidential discussion about your particular circumstances.
Case studies
How the law played out in real cases
Published decisions of courts and tribunals, summarised in plain English from the published decision. Every case turns on its own facts.