Can you force an 'older' employee to retire? Employer ordered to pay damages

Worker argues health ‘rapidly deteriorated’ after suffering 'age discrimination'

Can you force an 'older' employee to retire? Employer ordered to pay damages

The Federal Court of Australia recently dealt with a case involving a worker who argued his award of general damages and damages for economic loss was inadequate. Such appeal arose from the discrimination against the worker treated less favourably in his employment because of his age in relation to continuing in his role or retiring.

Discriminatory treatment led to 'health deterioration'

The worker, then 54 years old, started his employment with the shipping company in 2003 as a chief accountant.  The discrimination issues arose around February 2018 when the ex-managing director of the company told the worker that the company had a retirement age of 65 and asked him when he would retire.

Consequently, the worker responded that there was no mandatory retirement age in Australia and noted that it was unlawful to make him retire based on age. Still, the managing director warned the worker that he would give him three months' notice of his retirement.

Around March 2018, the worker was informed that an employee from the company's affiliated office in Dubai would take over from him, despite the worker not giving any specific date for his retirement.

Even though the worker asked for clarification regarding the takeover, the managing director replied, "I know you have a retirement unit in Manila." Thus, the worker was forced to give a retirement date which he gave as July 2019.

Months later, the worker was informed that his employment contract would end on 31 December 2018 and that he would be on a new contract to train the new employee.

Hence, around July 2018, the worker sent an email to the employer for clarification regarding the notice of termination, to which the employer did not respond.

Later, the Court noted that the worker's "health deteriorated rapidly and he was told to take some time off given the stress reaction that the discussion had caused."

The worker's appeal was then brought to the Federal Court because of his three arguments: (1) the initially awarded general damages of $20,000 was insufficient, (2) failure to make an award of damages for economic loss, (3) failure to find that the employer had brought about his dismissal because of his age.

Court's decision

In examining the case, the Court noted that no challenge was made to the finding of age discrimination. Hence, only the sum of general damages was necessary to discuss.

The Federal Court found that the worker succeeded in his appeal regarding the liability on the employer's part to general damages that must be awarded to the worker.

Ultimately, the Court ordered the employer to pay the worker $90,000 for general damages and a provisional amount of over $142,000 for economic loss.

Recent articles & video

Nearly 4 in 10 Australians using generative AI at work: survey

FWC: Employees entitled to double pay for insufficient breaks between shifts

Cafe operator, director penalised for underpaying staff

Should employers reveal questions ahead of interviews?

Most Read Articles

Queensland resolves dispute on long service leave entitlements

From full-time to casual: 'Struggling' employer converts worker's role without consent

Fired for 'verbally abusing' manager? Worker cries unfair dismissal amid health issues