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Can you force an employee to retire?

Can you force someone to retire if they have reached pension age?
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Can you force an employee to retire?

Can you force an employee to retire?

7 June 2021

Can you force someone to retire if they have reached pension age?
 
Q An employee's level of work performance has deteriorated to the point where we are seriously considering dismissal. The employee is in his late sixties, has been employed for five years and would be eligible to receive the age pension if no longer employed.

The employee is adamant he is capable of continuing in his employment. Can the company request the employee to retire because he has reached the eligible age to receive a government pension? Or, if we are of the view he can no longer perform the work at the required pace, can we demand proof of fitness for work if an employee is seen to be suffering from old age and health issues?
 
A The employee has a number of statutory protections in this circumstance if the grounds for a dismissal are based solely or primarily on age. This includes the Age Discrimination Act 2004 (Cth), state and territory anti-discrimination laws, and general protection against adverse action by the employer under the Fair Work Act  2009.

These statutes also protect an employee whose dismissal is based on physical disability or, in the case of the Fair Work Act, protection where the employee is temporarily absent from work (three months) due to illness or injury. Even if the grounds for dismissal were not based on the employee’s age, he could argue the dismissal was due to his physical disability and health issues.


Inherent requirements of the position

In this circumstance, dismissal could only be justified if the employee was deemed incapable of performing the inherent requirements of the job.

A practical method of determining what is an “inherent requirement” is to ask whether the position would essentially be the same if that requirement were removed. Position concerns rank and status. What is required of a person’s position will usually require an examination of the tasks performed from that position.
 
For example, an employee who is not attending work for long periods due to a physical or mental disability is unable to fulfil the inherent requirements of the position – that is, the inherent requirement being attendance at work.

See K v Department of Disability, Housing and Community Services [2011] FCA 1424.

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