Discrimination against 70 year old constitutes Adverse Action

Discrimination against 70 year old constitutes adverse action

Although more common overseas, the Federal Court recently ruled on a case involving aged discrimination where a prospective suitable candidate was ruled out of the recruitment and selection process solely on the basis of being 70 years of age. The facts of the case provide a very clear message on the legal responsibilities and legislative requirements that employers must comply when assessing applicants.

The case involved Corestaff WA Pty Ltd who provide both labour hire and permanent recruitment services to clients in a range of sectors including mining, and Gunalda Pty Ltd, who provide civil construction, transport and mining services to clients in the Pilbara region of Western Australia.

In October 2018, Gunalda and Corestaff were involved in discussions concerning sourcing suitable candidates for roles as plant operators for a temporary position on a mine site.

In email correspondence between the two, in reference to the applicant, Gunalda’s HR advisor wrote  ”Peter, we have his details already, he applied directly to us.  He has all the tickets we are looking for however he (sic) age is a concern – 70 years old”.

Corestaff’s Area Manager responded to the communique by stating “Wow, didn’t know that however I would have found out eventually … yes will certainly keep looking”. Subsequently, he emailed back details of other candidates.

He also provided feedback to the applicant telling him that his age (70) was the reason he didn’t get the job. At the hearing, he submitted that his rejection of the applicant due to his age was based upon his concerns for how the applicant may cope with the severe conditions experienced in the Pilbara region. However, as the Court determined those concerns are irrelevant.

Section 351 of the Fair Work Act states,

Discrimination

(1)   An employer must not take adverse action against a person who is an employee, or prospective employee, of the employer because of the person’s race, colour, sex, sexual orientation, age, physical or mental disability, marital status, family or carer’s responsibilities, pregnancy, religion, political opinion, national extraction or social origin.

There was very little debate that the applicant had suffered Adverse Action, as he was refused employment, despite having the necessary
qualifications,  based upon a general protection provision  – being his age.

The Federal Court has yet to rule on penalties for either business; however, it is expected to be quite significant when announce.

ABCC vs Corestaff WA Pty Ltd  [2020] FCA 893 (22 June 2020)

For queries about Adverse Action or discrimination or other employment questions, please contact Dean Cameron at Workforce Advisory Lawyers – We Know Employment Law on 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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