Court fines restaurant group in FWO’s first age discrimination case

The Federal Circuit Court in Brisbane has found a restaurant group discriminated against an employee who was dismissed when he turned 65.

Theravanish Investments has been fined a total of $29,150 for contraventions of age discrimination and record-keeping laws while its joint directors and equal shareholders, Nopporn Theravanish and Michael Theravanish, have also been penalised a further $4180 each.

Judge Michael Burnett has also instructed Theravanish Investments to pay $10,000 compensation to the former employee.

Theravanish Investments operates three restaurants – Chiangmai Thai at Broadbeach, Chiangmai Thai Sierra Grand at Broadbeach and Chiangmai Thai Surfers Paradise – and previously operated Chiangmai Thai at Nobby Beach as well as another Thai restaurant at Robina.

The case involved an employee who started working for Theravanish in 1996 and asked Nopporn Theravanish for long service leave in 2011. She then asked him if he was going to retire.

The employee responded that he was not going to retire and that long service leave had “nothing to do with retirement”.

After eventually agreeing to 13 weeks of long service leave, the employee alleges that when he returned to work he was moved to part-time.

The employee claims Michael Theravanish then wrote to him stating it was “the policy of the company that we do not employ any staff that attains the retirement age, which in your case is 65 years”.

This was the first age discrimination case brought by the Fair Work Ombudsman.

FWO Natalie James said discrimination against employees on the grounds of age is unlawful and the outcome of the case serves as a warning to employers that it won’t be tolerated.

“Limiting employment opportunities of workers because of their age is totally unacceptable and we take such conduct very seriously because of the impact it has on individual workers and the labour market generally,” she said in a statement.

Giri Sivaraman, employment law principal at law firm Maurice Blackburn, told SmartCompany the findings confirm you can’t rely upon antiquated notions of retirement age to terminate someone’s employment.

“I’ve advised many employees on different issues and occasionally age discrimination comes up but it has been a long time since I’ve seen an employer try to artificially force someone to hand back their employment because of a retirement age,” he says.

“I think employers are aware you have to look at all the circumstance of employment, the mere fact that someone has turned 65 shouldn’t have any implication on the employer’s view of how they are doing.”

Sivaraman says if someone is coming up to retirement age, business owners should not treat them differently to anyone else.

SmartCompany contacted Theravanish Investments but the business declined to comment.