Despite anti-discrimination legislation and protection under the Fair Work Act (FWA), discrimination against mature aged workers is a prevalent and ongoing issue within Australia.
While many older workers feel ‘shut out’ from recruitment entirely, discrimination within the workplace itself can take many forms, such as:
- Segregation, isolation and bullying
- Denial of flexible working arrangements
- Being overlooked for promotion, skill development and training
This is largely attributed to the fact that poor management and workplace culture creates a platform for negative stereotypes and assumptions to flourish. These include that mature aged workers are not able to adapt to change, have poor health and will take unnecessary personal leave, have difficulty learning new knowledge and technological skills and are frequently labeled as a “poor cultural fit”.
Many of these issues were raised in a recent case before the NSW Civil and Administrative Tribunal, where it was found that a 62-year-old Acorn salesperson who had been dismissed was discriminated against because of his age and disability. The employee led evidence of his dismissal meeting, which included the following:
Manager: "You're 61."
Employee: "Actually I'm 62."
Manager: "That's even worse."
Manager: "… Look that's not the only problem. You have a broken back."
… "If you really want to know, the reality is we think you're going to turn around and use your back for a workers comp claim".
Further, the manager claimed the employee was "also deaf", because he never responded when she yelled at him. The employee replied: "I hear every word. I don't respond to being yelled at."
The tribunal members accepted that the account led by the employee was “more probable than not” and that the employee was treated less favourably because of his age and disability. It was accepted that his age group, his back injury and hearing impediment were, when used in combination, material reasons in his manager’s assessment that the employee did not “fit the culture”. The employee was awarded $15,000 for “pain, suffering and humiliation” as well as $16,420 damages for lost wages.
In saying that, while age discrimination in the workplace is recognized as a significant issue, there are exceptions that apply. Both the Age Discrimination Act and the FWA specify that it is not unlawful to discriminate where it relates to the individual’s capacity to perform the inherent requirements of the role. For instance, a young person without a driver’s license would be unable to carry out the position of a delivery driver. Employers must be able to determine the duties and responsibilities that are an essential part of the role, including the requisite physical ability an employee would need to safely perform their tasks.
Lessons for employers
Be mindful of your obligations under the Age Discrimination Act and the FWA.
Where an employee is aged 55 years and over, consider flexible working arrangements when requested and ensure you have sound business reasons if refused. A worker may make an adverse action claim if their request is denied.
Maintain a working environment that allows for equal opportunity for all (i.e. in providing promotions, training and skill development).
Hiring and retaining older workers or people with disabilities may enhance the company’s image and reputation among its current and future employees, competitors and customers.
Mature aged workers can be great workplace mentors and their knowledge, skills and experience can be of great benefit to younger employees.
In a recent case, a 62-year-old store worker has successfully argued his claim for age and disability discrimination. It was found that he was dismissed because of his age, back injury and hearing impediment.
 McEvoy v Acorn Stairlifts Pty Ltd  NSWCATAD 273 (12 September 2017).