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Age discrimination: employer must pay up

A tribunal found the company had unlawfully discriminated against him.
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Age discrimination: employer must pay up

Age discrimination: employer must pay up

12 April 2021

By Gaby Grammeno

After a construction company turned a man down for a job because of his age, a tribunal found the company had unlawfully discriminated against him, in breach of anti-discrimination laws. The business was ordered to pay the man compensation for telling him he was too old for the job, and because the company’s lawyers had written him a belittling letter in response to his complaint.

‘You’re too old’ stunned, offended and shocked

The building company had advertised for a casual construction worker to undertake ‘jack hammering, wheeling barrows of concrete and dirt, excavating dirt/sand/clay etc; general construction labouring duties’. The ad included the requirement that applicants be ‘fit and agile’.

The man, who felt he was fit and agile and had the necessary qualifications and specified equipment, rang the potential employer before lodging an application – his usual practice – to enquire about the role.

The company director answered his enquiry with a single question: ‘How old are you?’

When the man said he was 61, the company director burst out laughing. In between laughs he 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’. Still laughing, he said ‘You are too old, cheers mate’, and hung up the phone.

The man was stunned, very offended and shocked by the conversation. He said he felt humiliated, ridiculed and diminished, and did not apply for the job. He lost the confidence to apply for jobs requiring physical strength.

For the next six months, he did less construction work than previously, mostly taking other work that paid less. Then he spoke to two previous employers about this experience and they assured him he was a good worker and they’d never had any negative feedback about him. After that, he started taking on casual construction work again.

He complained to the Anti-Discrimination Board about the incident. As part of the complaint process, the building company engaged solicitors to reply on their behalf. The man said he was belittled and degraded by the solicitor’s response denying his allegations.

The lawyers’ letter said he could not ‘use his age as a shield to deflect from his lack of experience’ and implied his experience in construction labouring consisted only of ‘part time bits and pieces labouring roles’. This letter, which suggested the man’s complaint was mere ‘innuendo’, added to the man’s hurt and distress.

The tribunal’s view: company director breached discrimination laws

When the case was heard in the NSW Civil and Administrative Tribunal – Administrative and Equal Opportunity Division, the company director said he thought the claim was absurd, and that he’d provided all the information on which the solicitors had based the letter. He thought the letter was ‘1000% correct’.

He did, however, admit that he’d been ‘short’ with the man and that because the call had come at 7.30pm and he’d been up early, he ‘didn’t want to know’.

The tribunal decided the worker’s version of the conversation was more believable. When giving evidence, the company director was more abrupt, exhibited frustration and temper at times and used more colourful language, whereas the rejected worker’s demeanour – speaking quietly, slowly and considering his words before answering – was more serious and sensitive.

The tribunal found that the company had unlawfully discriminated against the applicant on the ground of age in contravention of s 49ZYB(1)(b) of the Anti-Discrimination Act 1977 during a telephone conversation on 12 November 2019.

The tribunal ordered the company to pay to the man compensation in the sum of $3,740.40, within 28 days.

The sum consisted of $1490 for economic loss and $1500 for non-economic loss, as well as $750 in aggravated damages for the solicitors’ letter, which the tribunal members said had added to the worker’s hurt and distress.

The bottom line: Job applicants must be considered on their individual merits, rather than making assumptions based on their age or other grounds on which discrimination is prohibited.

Read the judgment

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

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