Provisions in Australia's anti-discrimination laws also extend to the recruitment process
In a recent case, the Federal Court of Australia considered whether a recruiter’s refusal to hire a 70-year-old candidate amounted to unlawful discrimination. Ultimately, the Court found that the recruiter’s decision was discriminatory and imposed a fine totalling $29,000. The case provides an important reminder for recruiters to be knowledgeable of their employment law obligations.
In October 2018, a labour-hire and recruitment agency posted a job advertisement for a grade operator role for a construction company. A few days after the advertisement was posted, the recruiter notified the company of one candidate – providing some details but failing to mention he was 70 years old. When the company learned of the candidate’s age, it rejected his application. The recruiter subsequently notified the candidate that his application was unsuccessful.
The Court noted that, while the conduct of both companies was confined to one incident, it was a “serious, and not trivial, example of discrimination”, given the only roadblock to the candidate’s continued consideration for employment was his age.
The Court placed more weight on the recruiter’s conduct, commenting that the recruiter “should hold itself to high standards in the context of an understanding of employment law and discrimination.” It acknowledged that, although the recruiter showed no remorse for its conduct, it had taken steps to improve its compliance culture, including disciplinary action against the manager involved and introducing online discrimination training for its staff.
With this, the Court imposed a penalty of $20,000 on the recruiter – a sum that it noted would have been discounted had the recruiter shown genuine remorse. Turning to the construction company, the Court found that its conduct was less serious and was not satisfied that it represented any broader culture of discrimination. However, it did find a penalty of $9,000 to the construction company to be appropriate.
The Court ordered that 50% of the total penalty be paid to the candidate, commenting that he was “an innocent party in the circumstances and the target of the discrimination.”
