Employees Biden their time: how old is too old?

Employees Biden Their Time: How Old is Too Old?

Much media coverage has been given to whether US President Joe Biden has the physical capacity and mental acuity to campaign and secure a second term for the Democrats and then, if successful, effectively serve for the duration of that term. President Biden would be 82 years of age at the start of a second term, 86 years old at the end of it.

While commentary and prognostication about the US presidential election is outside the scope of this article, the discussion about President Biden raises broader questions for employers about employees of an advanced age.

In managing older employees, employers need to be mindful of the Age Discrimination Act 2004 (Cth) (ADA) and the general protections provisions of the Fair Work Act 2009 (Cth) (FWA) that prohibit adverse action for a range of prohibited reasons including, relevantly, age.

Assumptions

Assumptions about the ability of an employee to continue in employment based on age alone can lead employers to make discriminatory decisions.

There are myriad examples in popular culture of entertainers and artists who defy such assumptions. Mick Jagger still energetically struts up and down the stage when performing with the Rolling Stones at the age of 80. Even more incredibly, by his side is Keith Richards, who has hardly been an exemplar of clean living, playing guitar at the age of 80. Bob Dylan is still performing concerts as part of his aptly titled Never Ending Tour at the age of 83. Paul McCartney performed shows that went for close to 3 hours in Sydney last year at the age of 81.

Film directing can be stressful and arduous yet Clint Eastwood, Woody Allen and Francis Ford Coppola directed their most recent releases at the ages of 91, 87 and 84 respectively. One of the most acclaimed releases of this year, Furiosa, was directed by 79 year old George Miller. The Portugese film director, Manoel de Oliveira, directed his last feature film at the age of 103 after a burst of productivity in his nineties.

Legendary radio announcer John Laws still broadcasts every day at the age of 88, a fact commented upon by Peter Garrett during the last Midnight Oil concert (in which then 69 year old Garrett performed for close to 4 hours) and in a recent lecture by expatriate lawyer Geoffrey Robertson KC (himself 77). Laws' one time radio rival, Bob Rogers, continued broadcasting well into his nineties.

Of course, for every one of these examples, there are many others who have suffered from the ravages of time and not in a position to entertain as they once did. For instance, musician Brian Wilson, 2 days younger than Paul McCartney, will sadly never perform again.

Some employers erroneously believe that once an employee reaches the age of 67 (the age of eligibility for the age pension) they can then 'retire' that employee, and sometimes treat employees beyond that age as outstaying their welcome. Many employees are content, of course, to retire at the earliest opportunity. Other employees, for various personal, professional and financial reasons, want to remain in employment into their late sixties, seventies and beyond.

Capacity and Performance

The desire for some employees to continue working to an advanced age leads to the issue of what an employer can do if the performance of such an employee does start to decline. The starting point is this rather trite proposition: treat them the same as everyone else.

Rather than focusing on the age of the employee (reference to which should be assiduously avoided in discussions), the employer should objectively address the issues of performance that have arisen in the work performed by the employee, just as they would for any other employee. In short, identify the deficiencies in performance, provide guidance, support and training to address any deficiencies and, where necessary, provide warnings and procedural fairness in the performance management process prior to any carefully considered decision to terminate employment.

A few further observations about managing the performance of employees of advanced age:

1. The ADA and relevant provisions of the FWA essentially prohibit employees being treated less favourably because of their age. It does not, however, prohibit or prevent such employees being subject to reasonable performance management.
2. Further to this, the operation of the ADA and relevant provisions of the FWA do not generally require the employer to take account of the age of the employee and lower the performance standards than would otherwise be required.
3. Those performance standards should, however, be reasonable and relate to the inherent requirements of the position to avoid, among other things, the risk of indirect discrimination under the ADA.
4. If an employee is unable to perform duties safely then not only can the employer manage this issue, it is imperative that it do so.
5. If an employee develops a health condition that affects performance then the provisions of the Disability Discrimination Act 1992 (Cth) (DDA) should be considered. The issue may need to be managed as a function of disability rather than age. The DDA may require the employer to make reasonable adjustments.
6. If an employee has an extended period of service then, as a general proposition, it increases the risk the Fair Work Commission will find the termination to be "harsh" in the event of unfair dismissal proceedings, given the impact that termination of employment will have on the employee. For an employee of advanced age, the termination of employment may prove to be career ending.
7. Employees of advanced age are required to comply with the same conduct standards as everyone else. Arguments relying upon generational difference to justify harassing or bullying conduct will be given short shrift by a court or tribunal. The antics of 'Are You Being Served?' are no longer the relevant standard.

Conclusion

As the (old!) saying goes, 'age is just a number'. In employment, that is true. It does not tell the whole story about what an older employee can bring to an employer. That said, as employees look to prolong their working lives, employers need to consider how to manage the issues that can arise from employees of an advanced age thoughtfully and sensitively.

Michael Byrnes, Partner
Phone: +61 2 9233 5544
Email: mjb@swaab.com.au

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.