Australia: 4 things to know about age discrimination

By Andrew Rich

An age old issue: where do you stand if you think age discrimination is affecting you at work?

Age discrimination is becoming an issue that more employees feel they are facing, as we work beyond what was once considered to be the traditional retirement age.

The recent successful prosecution by the Commonwealth Fair Work Ombudsman of two Gold Coast restaurant owners has highlighted this issue.

Age discrimination case study

Believed to be the first age discrimination case prosecuted by the Ombudsman, the restaurant owners were ordered to pay penalties totalling more than $29,000 in addition to compensation of $10,000 to a long standing employee terminated on his 65th birthday.

The employee took long service leave in April, 2011. When he was due to return to work, he was told that he would work part-time. The employee subsequently met with his employers and raised questions about a number of issues, including his pay, later putting his concerns in writing. Shortly after this, he received a letter informing him of the plans to terminate his employment on his 65th birthday. The Ombudsman successfully argued that this action was unlawful.

Advocates, including Age Discrimination Commissioner Susan Ryan, believe age discrimination is a rising trend. There were 32 Queensland-wide age discrimination complaints in 2012-13ⁱ compared with 23 in 2011-12ⁱⁱ. Compounding the problem is that the issue, legally, is quite new (the Age Discrimination Act was only introduced in 2004) and many older people may be unsure of their rights and/or reticent to take action. Commissioner Ryan recently told SBS Radioⁱⁱⁱ it was of particular concern for older people from non-english speaking backgrounds who were often afraid to speak up.

Whether the barriers are linguistic or cultural, or the discrimination is direct or indirect, the key issue to note is that the law is designed to protect employees from discrimination based on their age.

Anti-discrimination legislation also prohibits termination and adverse action due to an employee's:

• race
• colour
• sex
• sexual orientation
• physical or mental disability
• marital status
• family or carer's responsibilities
• pregnancy
• religion
• political opinion
• national extraction; or social
• origin.

However it should be noted that state and federal legislation varies slightly on the characteristics /grounds which may form the basis of a discrimination complaint. Generally speaking, there is an exception if the discriminatory action is taken due to the inherent requirements of the particular position occupied by the employee.

So what do you need to know if you believe you have been subjected to age discrimination?

• It is illegal to sack someone because of their age.
• You can seek compensation and the imposition of penalties as a result of discrimination.
• You can take legal action against both your employer and any co-workers who discriminated against you.
• You can complain about discrimination to the Fair Work Ombudsman or to the Australian Human Rights Commission, or the anti-discrimination commission in your state.

Footnotes

ⁱhttp://www.adcq.qld.gov.au/__data/assets/pdf_file/0013/6034/ADCQ-Annual-Report-2012-13.pdf

ⁱⁱhttp://www.adcq.qld.gov.au/__data/assets/pdf_file/0013/3037/ADCQAnnual20Report2011-12.pdf

ⁱⁱⁱhttp://www.sbs.com.au/news/article/2014/04/14/court-ruling-highlights-workplace-age-discrimination

The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.