A labour hire and recruitment company and a company providing civil construction, transport, and mining-related services have been issued fines totalling $29,000 by the Federal Court after they engaged in age discrimination against an 70 year old prospective employee. The case highlights the importance of ensuring that employers carefully consider the inherent requirements of a role when recruiting.

Background

The applicant in the case applied for a position with the second respondent, a company providing civil construction, transport and mining-related services to clients in the Pilbara region of Western Australia. An employee of the first respondent, who was the recruiter engaged by the second respondent, initially forwarded the application to the second respondent, saying “looks like I have a guy ready to go”.

Following the application, there was email correspondence between the first respondent and second respondent regarding the applicant’s suitability for the role. During the correspondence the second  respondent’s human resources advisor stated that the applicant “has all the tickets we are looking for however he [sic] age is a concern – 70 years old”. A representative of the second respondent then emailed the applicant, notifying him that he was not successful, stating “no joy with the role at Gumala due to your age mate”.

Ruling

In the original liability ruling, the Federal Court considered that the second respondent had engaged in age discrimination against the 70-year-old applicant by way of its conduct. Specifically, the second respondent had taken adverse action against the applicant within the meaning of Item 2(a) of s 342(1) of the Fair Work Act 2009 (Cth) (“FW Act”) because of his age, and there therefore it contravened s 351(1) of the FW Act.

The Federal Court considered that the manager of the second respondent, after finding out about the applicant’s age, separately and independently considered age as a reason for refusing to employ him. The manager gave evidence that he had personal concerns about age of the applicant, and was concerned that the environment in the Pilbara was tough because it became very hot and unpleasant. The manager thought about the applicant as a “dad or grandad” working in those conditions, and made his own judgement on the matter after he received the email from the first respondent.

In determining the nature and circumstances of the discrimination conduct during the hearing about the penalty to be imposed, the Federal Court considered that the conduct, while confined to one incident, was “a serious, and not trivial, example of discrimination”. The Federal Court ultimately found that the second respondent engaged in age discrimination and ruled that it pay a pecuniary penalty of $20,000, with payment to be made in equal parts to the applicant and the Commonwealth. The second respondent, who had admitted liability to breaches of section 351 of the FW Act, was ordered to pay a pecuniary penalty of $9,000 on the same terms.

Protections against discrimination

Anti-discrimination laws in Australia have substantial breadth and include considerations of factors like age, disability, race, and sex. Employers have clear obligations to comply with these laws, particularly during the recruitment and selection process. In this case, the Federal Court explicitly referred to the responsibility of organisations in relation to discrimination, noting that “no organisation, regardless of its beneficial purpose and role in the community, is entitled to complacency when it comes to discrimination in the employment environment”.

Key takeaways

• Employers must have a legitimate and genuine justification for making employment decisions which are based on attributes such as a prospective employee’s age.
• Such justification may be informed by a proper assessment of the individual’s ability to undertake the inherent requirements of the position.
• Employers and recruitment company’s may be liable for pecuniary penalties if they engaged in age discrimination.

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