The Fair Work Ombudsman has successfully prosecuted a Thai restaurant business on the Gold Coast for terminating an employee upon attaining the age of 65 years of age.
The employee had been working for about 15 years and brought complaints about underpayment of wages which were disputed by the business.
As the issues were unresolved the employee sought a redundancy and severance payment. The employer refused and stated that it was company policy not to employ any staff that attain the retirement age of 65 years of age.
The Federal Circuit Court held that this was a breach of the General Protections provisions under Part 3.1 of the Fair Work Act 2009 (Cth) which prohibit adverse action based on age. The Federal Circuit Court ordered the company to pay the employee $10,000 for loss suffered plus $20,790 in fines. The company's joint directors were fined a further $4,180 each.
This was despite the Court's acknowledgment that there is a general misunderstanding within the community about retirement and the retirement age, and the reliance by the directors upon advice provided by their long-standing trusted accountant that it was lawful to establish a compulsory retirement age of 65 years of age. The Court held that the accountant had failed his clients and they must pay the price.
Employers should be aware that retirement ages are not compulsory and that workers may elect to work beyond 65 as a legally protected right. It may be possible to discriminate against a person based on their age if the employee cannot fulfil the inherent requirements of the role but this requires considered legal advice and should be approached with caution.
Case note: Fair Work Ombudsman v Theravanish Investments Pty Ltd [2014] FCCA 1170 (2 April 2014)
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