A construction company and a recruitment company have been penalised a total of $29,000 for age discrimination.
The Federal Court found the Western Australian-based companies discriminated against a 70 year-old prospective employee.
Justice Katrina Banks-Smith described it as “a serious, and not trivial, example of discrimination”.
Construction and recruitment companies penalised
CoreStaff is a labour hire and recruitment company. It provides services to Gumala Enterprises – a civil construction, transport and mining-related company in WA’s Pilbara region.
The 70 year-old man responded to an online job ad placed by Terry Ingram from CoreStaff for an experienced grader operator.
After receiving his resume, Ingram decided the man could be suitable for the role, and subsequently passed his details onto Gumala’s HR advisor Nikki Maltese.
When Ingram later checked the status of the application in an email, Maltese responded:
“Terry we had his details already, he applied directly with us. He has all the tickets we are looking for however [his] age is a concern – 70 years old.
“The other guy is a no.”
Ingram replied to Maltese saying:
“Wow didn’t know that however I would have found out eventually … yes will certainly keep looking.”
Ingram then sent the 70 year-old job applicant the following email:
“Sorry… no joy with the role at [Gumala] due to your age mate.”
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‘A serious, and not trivial, example of discrimination’
Justice Banks-Smith found CoreStaff refused to employ the man because of his age – a clear breach of anti-discrimination provisions contained in the Fair Work Act.
Additionally, she found Gumala also breached the Fair Work Act by encouraging or inciting Mr Ingram to refuse to employ the man because of his age.
In imposing penalties on the two companies, Justice Banks said employers must not make “unsubstantiated assumptions” about a person’s age and ability to do a job.
Instead, she said employers must make proper assessments as to a person’s ability to undertake the inherent requirements of a particular position.
“The discrimination against [the worker] was clear – the only roadblock to his continued consideration for employment was his age,” she said.
“Conscious recognition was given to his age by both Gumala and by CoreStaff and that factor was then relied upon to deny his opportunity of employment.
“It was a serious, and not trivial, example of discrimination.”
Justice Banks-Smith imposed a $20,000 penalty on CoreStaff with half awarded to the worker.
She also imposed a further $9,000 penalty on Gumala with half awarded to the worker.
Justice Banks-Smith noted a 2016 report by the Australian Human Rights Commission (AHRC) which found there is a significant increase in the time it takes for older people to find work once they become unemployed.
“It is notoriously harder for older Australians to obtain and retain work.
“This trend, and the overall decline in labour force participation with age (despite a desire to continue working), sit alongside what the AHRC describes as ‘negative assumptions and pervasive stereotypes about older people that contribute to discriminatory practices’, including perceptions about health problems, learning ability, aptitude and attitudes.”
Employers must know law
Employment lawyer Stephen Dryley-Collins said employers must be aware of their legal obligations when it comes to recruitment.
“There is both state and federal anti-discrimination legislation in Australia,” he said. “And it is the responsibility of employers to make sure they are aware of their legal obligations.
“Denying someone a job based on their age is unlawful discrimination – and, in this case, the damning emails proved it happened. I’m therefore not surprised that Justice Banks-Smith imposed pecuniary penalties, because recruitment and HR people should know better.”
Mr Dryley-Collins said an employer can lawfully deny someone a job based on their age, but only if they can legitimately prove the person cannot perform the inherent requirements of a particular job.
“Refusing someone a position based solely on the number of birthdays they’ve had is not good enough, as the court has clearly stated in this case,” he said.
Mr Dryley-Collins advised anyone who has experienced age discrimination to contact an employment law specialist to discuss their options.
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