Applicant told ‘too old for job’ wins compensation

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Applicant told ‘too old for job’ wins compensation

An aspiring job applicant in the construction industry has been awarded exemplary damages by New South Wales’ Civil and Administrative Tribunal. The tribunal determined that comments and references to his age during a phone suggesting he was incapable of performing the job amounted to age discrimination. It is a unique case in Australia as discrimination claims are normally associated with gender, indigenous or minority groups.

The case involved a construction worker with a long history working in the construction industry and related industries. On 12 November 2019, he was 61 years of age. He alleged that he telephoned the respondent company, Adept Underpinner Pty Ltd (Adept) (the Company), to inquire about a casual construction worker job the Company had advertised on the recruitment website `Indeed’.

He alleged that the phone was answered by one of the Company’s directors, who asked him how old he was. When the applicant replied that he was 61, the director laughed and said he would have a heart attack, that he didn’t want that happening on his site, said he was too old and ended the call.

When giving evidence, he recalled the conversation as,

“(he) (burst out laughing and in between his laughter said): I have had young ones run away from the workload. (He laughed some more and then said) You would have a heart attack, and I don’t want that on my site. (And he was still laughing when he said) You are too old, cheers mate (and hung up the telephone).

The applicant claimed that this call affected his confidence in his ability to undertake construction work, that he felt humiliated, ridiculed, and diminished, and as a result, he ceased accepting such work for about six months.  He claimed that the comments made to him constituted discrimination based on age and that as a result, the Company had caused him to suffer both economic loss and non-economic loss.

Despite the director’s denials that he had made the complaints claimed, the tribunal accepted the applicant’s version, based upon the contemporary notes of the conversation that he took, the timing of his complaint, which was made just over a week after the conversation took place, and without any attempt to apply for the job, indicated to the tribunal panel that his complaint was connected to the conversation.

They also found him to be a more reliable witness noting that he spoke quietly, slowly and considered before answering and gave the impression of being more serious and sensitive. In contrast, the director was regarded as more abrupt, exhibited frustration and temper at times, and used more colourful language.

The tribunal determined that the applicant had been treated less favourably than other candidates based on his age. Consequently, the tribunal found that the Company unlawfully discriminated against the applicant on the grounds of age in contravention of s 49ZYB(1)(b) of the Anti-Discrimination Act 1977 during the telephone conversation on 12 November 2019.

They ordered the Company to pay the applicant compensation in the sum of $3,740.40, comprising amounts for economic loss, non-economic loss, and aggravated damages.

G v Adept Underpinner Pty Ltd [2021] NSWCATAD 75 (24 March 2021)

For queries about age discrimination or other employment questions, please contact Dean Cameron at Workforce Advisory Lawyers – We Know Employment Law on 1300 WAL LAW, 0417 622 178 or via email to dean.cameron@workforceadvisory.com.au

Disclaimer: This information is provided as general advice on workplace relations and employment law. It does not constitute legal advice, and it is always advisable to seek further information regarding specific workplace issues. Liability limited by a scheme approved under professional standards legislation.

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