Age discrimination claim leads to unfair dismissal finding by FWC
The Fair Work Commission (FWC) recently dealt with an unfair dismissal case where a worker claimed he was terminated without valid reason 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.
The employer argued that performance issues and declining revenue justified the termination, citing examples of mistakes and behavioral concerns. However, the worker disputed these claims, maintaining that any mistakes were minor and infrequent.
Following a determinative conference held on 17 December 2024, the Commission examined whether proper procedures were followed and if there was substantive evidence to support the employer's decision to terminate the worker's employment.
The case involved a worker employed at a discount retail chain in Western Australia. His employment was covered by the General Retail Industry 2020 Award, and he filed his application within the required 21-day period after being dismissed in August 2024.
The employer initially claimed protection under the Small Business Fair Dismissal Code but later confirmed during the determinative conference that it operated several stores across Western Australia with more than 15 employees total, making the Code inapplicable.
The employer claimed revenue declined significantly during 2022-2023 and suggested the worker's performance contributed to this. However, when asked to provide specific examples of performance issues, the director of the company could only cite two minor incidents: providing an incorrect lamp to a customer in 2023, and completing a different task than directed after consulting with another team member.
The Commission found these examples insufficient, noting: "Both of these examples occurred some months before the dismissal of [the worker] and, whilst these may indicate extremely minor areas of concern regarding [the worker's] performance, neither example provided would, in isolation or combined, provide a valid reason for termination nor would they reasonably warrant the termination of [the worker's] employment."
The employer also made vague claims about the worker being too talkative with customers, using his mobile phone at work, and requesting additional shifts despite not always completing them when rostered. No detailed evidence supported these allegations, and no warnings were issued for these concerns.
The employer claimed a new store manager conducted a formal performance discussion with the worker in June 2024. This manager had previously been the worker's colleague before being promoted. However, the manager did not attend the FWC conference and was unavailable for questioning about this alleged meeting.
According to the employer, the worker's performance improved briefly following this June meeting but then regressed, leading to a July conversation where the director "personally discussed the situation with [the worker], advising him to seek alternative employment." The company provided no detailed reasons beyond vague assertions of "multiple work-related errors."
The worker strongly disputed this version of events, testifying that the company's director told him in July 2024 he would lose his job at the end of August due to his age.
The Commissioner found the worker to be a credible witness and concluded: "I have formed the view that this conversation did not occur or if it did, the conversation was not of such a manner that [the worker] could have reasonably understood it to be a warning or formal performance management meeting."
The decision noted there were no accompanying notes or evidence that this meeting occurred, and no written warning was provided to the worker.
The worker acknowledged making minor mistakes but provided context for each allegation. For instance, regarding the lamp incident, the worker "did not deny that he accidentally provided [the director] with the wrong lamp for a customer. However, [the worker] states that this was an innocent mistake. [The worker] also clarified that this incident occurred over 12 months prior to his dismissal taking place."
The worker explained that many customers "were older and liked friendly customer service, which involved the expected level of verbal communication and what one may describe as a bit of chit chat."
He noted that many staff did not have English as a first language, so he would provide additional assistance with customer communication when required.
The worker admitted having his mobile phone during work hours but explained this was "to enable communication with his daughter who, due to her medical issues and care needs, would occasionally need to contact him while working out of necessity."
Throughout the proceedings, the worker maintained he was "not provided with any written warnings nor was he ever subject to any formal disciplinary proceedings during his employment."
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 Commissioner 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."
The FWC found the alleged performance issues were "vague, trivial in nature, infrequent, not supported by any notable evidence, and occurred well before the termination took place."
The FWC determined there was no valid reason for termination under section 387(a) of the Fair Work Act 2009. Since there was no valid reason, there could not have been proper notification or opportunity for the worker to respond.
While the employer expressed concerns about the worker's performance, the Commission was not satisfied "that these performance concerns were ever formally or reasonably addressed with [the worker] nor am I satisfied that the reason for termination was unsatisfactory performance."
The decision acknowledged that while the employer was not a small business under the Code, "it is evident that [the employer] is not a large employer and that they lack the required human resources management support in dealing with employment related issues. This lack of support and structure were factors that led to [the worker's] employment being dismissed in a manner which lacked any of the expected or required formalities."
The Commission noted the worker had been employed for over three years with no formal warnings that could be produced as evidence.
At the conference, the worker explained he had been unable to find new employment, and "the impact this termination has had on his family has been significant." He believed his age impacted his ability to find new work.
The Commission was particularly concerned by the employer's apparent indifference to proper process: "[The employer's] termination of [the worker] cannot be supported by anything that has been put forth, and, of most concern, it appears that [the employer] was not concerned with the fact that the termination was unjustified."
After examining all factors under section 387 of the Fair Work Act, the FWC found the dismissal to be harsh, unjust, and unreasonable, lacking both substantive and procedural fairness.
"Having considered each of the matters specified in section 387 of the Act, I am satisfied that the dismissal of [the worker] was harsh, unjust, and unreasonable. There was no valid reason for the termination of [the worker]," the Commission stated.
The decision highlighted the employer's failure to establish legitimate grounds for dismissal: "The examples provided by [the employer] concerning [the worker's] performance do not individually or collectively justify the termination of [the worker's] employment and termination for such issues would be disproportionate."
The Commission emphasized the employer's concerning approach to termination: "[The employer's] termination of [the worker] cannot be supported by anything that has been put forth, and, of most concern, it appears that [the employer] was not concerned with the fact that the termination was unjustified."
The FWC concluded: "I am therefore satisfied that [the worker] was unfairly dismissed within the meaning of section 385 of the Act." The parties were to be contacted regarding the programming of the matter to determine remedy, with the worker seeking compensation as requested in his initial application.
