Fujifilm Australia executive launches Federal Court action with claim he was ‘pushed out’ because of his age

The chief operating officer of Fujifilm Australia has launched legal action against the company in the Federal Court, over claims the business and its chief executive officer and chairman breached his general protections under the Fair Work Act, after he was allegedly let go because of his age.

Fairfax reports outgoing chief operating officer David Marshall, 59, has filed a statement of claim alleging Fujifilm excluded him from decision making and moved him to a smaller office in the first half of 2017. Marshall will reportedly depart the business in October.

The claim includes the allegation that executives at the business made a number of negative comments about his age.

This includes an instance in which it is alleged the former chief executive of Fujifilm, Kevin Masuda, once pointed to Marshall at a dinner in front of high profile clients and said “Dave is too old”.

The claim also includes an allegation that in May, Fujifilm chairman Nobuhiko Koshimizu told Marshall the business needed a “younger person” in a general manager role.

Fairfax reports Marshall is seeking up to $1 million in damages, including loss of income and benefits, and $100,000 for distress and suffering after Fujifilm allegedly made changes to his position that restricted his management role.

SmartCompany has contacted Fujifilm Australia and Marshall’s legal representative for comment, but did not receive responses prior to publication.

The parties are scheduled for a first case management hearing in the Federal Court on October 24.

Innuendo and jokes about age a risk

Peta Tumpey, employment, industrial relations and workplace safety partner at TressCox Lawyers, says in general terms, businesses should be very wary about discussing topics like age and retirement at work, even in a joking way.

“I think in this day and age the best advice is to steer clear, avoid mentioning it or making jokes,” she says. 

In particular, employers should keep in mind that as workers approach the typical retirement age, “it’s a point in people’s lives where they are feeling quite sensitive”.

While it’s not clear what role communication played in this case, Tumpey observes that Australian businesses have traditionally not been prepared to discuss succession planning with their workers.

This can result in succession planning being poorly communicated and executed, and could cause problems for businesses in the long run, Tumpey says. For employers looking to discuss leadership transitions with their workers, she suggests focusing purely on business planning and avoiding making references merely to a person’s age.

“The better advice for businesses would be to spend time developing succession planning policies, so you are ready when the time comes for these conversations,” she says. 

She says “innuendo is huge” when it comes to claims about ageism at work. Employers should keep in mind that if they do need to performance manage someone, they make the terms of this clear rather than making changes to a worker’s focus without explaining why this is happening.

Looking at age discrimination cases in general, Tumpey observes there could be times where a business has a genuine need to performance manage someone, but this is poorly communicated. This could leave the employee to guess why they are being treated the way they are, and wonder whether the reason is their age.

With this in mind, the best practice for any workplace changes is communication, because that will clarify why an employer is taking the action they are, she says.

“If an employer doesn’t communicate that well and properly performance manage, well they start to take action that seems bizarre [to the employee].” 

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