Wise, worldly and working: Age discrimination and employment

For the first time in history, there are five generations of Australians participating in the workforce at once, and while it’s widely acknowledged that Australia has an aging population, what is less commonly appreciated is the pressure for older Australian’s to remain in the workforce. Sadly, age-related discrimination is an ongoing barrier to workforce participation and older people are experiencing discrimination at almost every stage of the employment cycle – from recruitment to termination.

In 2015, the Commonwealth Attorney-General asked the Australian Human Rights Commission (AHRC) to launch an inquiry into employment discrimination and participation. The report on the AHRC’s inquiry, called Willing to Work: National Inquiry into Employment Discrimination Against Older Australians and Australians with Disability, was released earlier this year and discussed both the statistical and anecdotal evidence about age discrimination in employment. The report made recommendations about how both governments and employers can make changes to improve workforce participation and limit instances of discrimination.

Age discrimination in recruitment

Of notable significance for employers were the report’s statistics about older people and the recruitment process. In 2015, 27% of people aged over 50 had recently experienced discrimination in the workplace and one third of the most recent episodes reported occurred when an older person was applying for a job.

Age discrimination involving recruitment has also been an issue before the courts, including in such cases as the highly publicised decision of Hopper and Others v Virgin Blue Airlines Pty Ltd – Final [2005] QADT 28.

In that decision, a group of experienced former Ansett flight attendants applied for positions with Virgin Blue Airlines. They were invited to the second stage of the recruitment process, a group assessment, but none were successful in making it to the next recruitment round. The flight attendants, aged between 36 and 56, said that Virgin Blue Airlines discriminated against them based on their age by treating them differently than other younger candidates, despite their competency and experience in the industry.

The Anti-Discrimination Tribunal of Queensland agreed with the flight attendants and found the assessors in the group assessment, who were mostly younger, had unintentionally exhibited bias in their selection process and had selected candidates similar to them in terms of age. In doing so, the assessors had discriminated against the older applicants and each of the flight attendants was awarded compensation.

In a more recent case, a job candidate successfully persuaded the Queensland Civil and Administrative Tribunal (QCAT) that Woolworths had breached anti-discrimination laws by making certain fields in an online job application form mandatory, including a question about age (Willmott v Woolworths Ltd [2014] QCAT 601). Woolworths argued that the age question was required in order to establish whether a person was over the age of 18, or to figure out what the candidate’s entitlements might be if they were hired. The QCAT rejected Woolworths’s arguments and said that in order to establish if a person was over 18 years of age, the application could ask an applicant a ‘yes’ or ‘no’ question rather than require them to state their age. The tribunal also found it was not reasonably necessary to require a person’s age so early in the recruitment process.

Age discrimination and ending employment

Unfortunately, discrimination in the recruitment process is not the only type of employment discrimination faced by older people. The AHRC report also detailed the difficulties that older people face when trying to find subsequent work after becoming unemployed. As at November 2015, the average duration of unemployment for mature aged people was 68 weeks, compared with 30 weeks for 15-24 year olds and 49 weeks for 25-54 year olds. Being unemployed for a longer period makes it more difficult to find work and the discrimination faced by older people in looking for work often makes the process intolerable. The AHRC report said that a third of older people who had experienced age discrimination gave up looking for work as a result and 60% found that it affected their self-esteem, mental health or caused them stress.

When terminating a mature aged employee’s employment employers should be aware of the potential legal risks that could flow depending on the basis for that decision. For example, it is in contravention of a range of anti-discrimination laws and the Fair Work Act 2009 (Cth) (FW Act) to take adverse action against an employee because of their age.

In Fair Work Ombudsman v Theravanish Investments Pty Ltd & Ors [2014] FCCA 1170, an employee approaching his 65th birthday was informed that it was company policy not to “employ any staff that attains retirement age” and that on his 65th birthday, his employment would cease. The employer was ordered to pay penalties for breaching the FW Act and compensation to the employee. The employer’s two directors were also fined for their involvement.

In another decision, Talbot v Sperling Tourism & Investments Pty Ltd (formerly Mount ‘N’ Beach Safaris Pty Ltd) [2011] NSWADT 67, a bus driver was dismissed by a fax that said: “In good faith and recognising that you are now in your early 70’s, what I suggest is that it’s time to step back from front line tour driver/guide work”.

After receiving this fax, the bus driver requested a meeting with his employer who agreed to take him back on reduced duties, which he considered to be a demotion. Then, about six months later he was finally dismissed from his employment. The NSW Administrative Decisions Tribunal (NSWADT) found the first dismissal, the demotion and the final dismissal were all acts of discrimination based on age. The tribunal found, based on the evidence presented, that the employer would not have treated another younger employee the way it treated the bus driver and therefore, he was discriminated against based on his age. The bus driver was award compensation for loss of income and general damages totalling $25,323.

Appreciating the value of older workers

The penalties for committing acts of discrimination can be hefty both financially and to an employer’s reputation, but seeking to avoid discrimination is far from the best motivation to hire or retain older people – the best reasons to value older workers are the proven tangible benefits that they can bring to a business. The AHRC report said that better diversity across an organisation can increase productivity, deliver better performance and innovation, hedge against the loss of corporate knowledge and improve organisational reputation.

Research cited in the AHRC report found personal productivity increases with age and that older people have a higher appreciation for the importance of productivity compared with younger workers. Increased participation is also of very real benefit to the wider economy and has the potential to increase Australia’s gross domestic product (GDP) by billions of dollars – not to mention the benefits of reduced welfare expenditure and increased self-reliance in retirement.

There are a number of small steps employers can take to improve workforce participation in their businesses. As recommended by the AHRC report, employers should gather information to help better understand the make-up of their workforce and should promote age diversity within teams to encourage a variety of perspectives, experiences and skills.

Athena Koelmeyer is the managing director of Workplace Law and a leading lawyer in the area of workplace relations. At Workplace Law, Athena provides strategic advice, representation and training to employers on all aspects of workplace relations.