FWC finds worker unfairly dismissed for being 'too old' to work
An Australian employment lawyer says potential claims of age discrimination can be mitigated with clear ‘over-communication’ after the Fair Work Commission (FWC) found a worker was unfairly dismissed on the grounds of their age.
“Sometimes I think there can be an assumption about the output of older workers that isn’t true. If there is an issue with performance, is there data to back it up?” Andrew Jewell, Principal at Jewell Hancock Employment Lawyers, told HRD.
The FWC found the worker had been unfairly dismissed after more than three years of employment. The worker alleged he received no formal warnings prior to dismissal and that age discrimination played a role in the employer's decision.
He said that, except for being told he was “too old” by the director, he had not been provided with a reason for his dismissal.
The Commission emphasized that terminating a worker after such employment duration requires "a valid reason giving rise to termination which is sound, defensible, or well founded."
The FWC concluded the employer "has not provided any evidence that the conduct or capacity of [the worker] was such an issue that it gave rise to a valid reason and the right to terminate."
Stats from Australian Seniors’ Gen Seen Report 2024 finds that 81% of over-50s feel ageism is prevalent in society.
There’s a “plethora of evidence” that those aged over 65 and over are being insufficiently supported in the workplace, according to Age Discrimination Commissioner Robert Fitzgerald AM.
Jewell says it’s down to unconscious bias.
“You don't see many overt age discrimination cases, they're normally more subtle. With cases like this, where there's actually been comments about an individual's age, they would generally run as an age discrimination claim. This one, interestingly was brought as an unfair dismissal claim. This is one of those circumstances where it’s clear that there's age discrimination. I would say most age discrimination cases are a bit more subtle.”
It’s so important to have data on any claims you’ve got against an employee, he said.
“They’re underperforming – do we have data on that? We need to look at the unconscious bias within the workforce because, say you’ve got a 32- and 64-year-old in the team and one has to go. Instinctively, one might go for the keeping the younger member of staff. But why? What’s the data saying?” Jewell added.
The key thing to consider in these proceedings is ensuring businesses interrogate their own decision-making and use a matrix-based assessment to ensure there’s no discriminatory action taking place, he emphasised.
“It’s the normal stuff which you would want to have in a high-functioning workplace. Recording performance, giving honest and continued feedback continuously is going to help. I think sometimes employers can get themselves into a little bit of difficulty because they know what they're thinking, but then they don't record it.”
“That’s when it can come across as unexpected for the employee – having no idea what’s going on because there’s no proof of conversations that have taken place. That makes the legal process, if it gets to that, so much harder,” Jewell continued.
Issues around unconscious bias in the workplace can bring up questions about best practice when trying not to discriminate.
Jewell told HRD that the key is “over-communication”.
“Communication in this is key. It’s not a legal obligation to communicate a lot – but the more of a paper trail that’s present and the more a worker is aware of what’s going on, the better.”
That then makes it hard for that person at the end of the line to say they’ve been selected for redundancy, because of their age because they’ve been told about the process, he said.
“They might not agree with that process, but they’ve been bought along that journey.”
