Federal Jurisdiction: What to Do if You Have Been Discriminated Against in the Workplace Based on Your Age

The law states that an employer must not discriminate against an employee or perspective employee based on that person’s age; such action is unlawful in Australia.

Age discrimination takes all forms, such as not granting a lease to someone because the perception they are too young, making negative stereotypes about someone due to their age or making negative assumptions that older workers are past their prime.

This articles focuses on discrimination occurring in the workplace.

Case Examples

Here are some examples where a worker was discriminated against based on the worker’s age:

In the case of Fair Work Ombudsman v Theravanish Investments Pty Ltd & Ors there was a finding of direct age discrimination because an employer fired an employee when he reached the age of 65 years old. The employer stated in its termination letter to the employee: “it is the policy of the Company that we do not employ any staff that attains the retirement age which in your case is 65 years. We believe that you will attain that age on 5th September 2011 in which time your employment will cease because of your age.” The employer was fined $40,000.

Similarly, in the case of Carr v Blade Repairs Australia Pty Ltd (No 2) there was a finding of age discrimination when an employer terminated the employment of a person because the company no longer wanted to employ “young blokes”. The employer was ordered to pay its former employee over $25,000 for breach of contract.

In the case of Gardener v Norcott [2004] QADT 39 a prospective employer put up an advertisement for a job for a position in a ‘young team’. An older applicant was questioned about their age. Unlawful discrimination on the basis of age was found in this case.

To avoid getting hit with such large fines, speak to one of our Perth workplace lawyers.

The person alleging age discrimination in the workplace must prove that the action that was taken against them was either:

1. 1. Unlawful under the anti-discrimination laws. Example of an exception: Laws governing wages for youth.
   2. Not taken because of the inherent requirements of the job. Example of an exception: in the case of Qantas Airways Ltd v Christie (1998) 193 CLR 280 the employee was not unlawfully dismissed at age 60 because there is an inherent requirement of the job for all international airline pilots to be under 60 years old in order to fly and land an international air crafts. This would constitute age discrimination.
   3. Not taken not in good faith.

See s351 Fair Work Act 2009 (Cth) and Age Discrimination Act 2004 (Cth) for further information.

If you have been discriminated at your workplace as either an employee by an employer or prospective employer, or as a contractor for a workplace, you may have a case to lodge a general protections claim in the Fair Work Commission. One of our employment discrimination lawyers can help you.