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A construction business has been penalised almost $6,000 after the NSW Civil and Administrative Tribunal concluded that the employer had unlawfully discriminated against a worker on the basis of age.

A 61-year-old man was appalled when an employer laughed at him and said he was “too old” when he enquired about a job.

The man told the NSW Civil and Administrative Tribunal (NCAT) that when he called to find out more information about a causal construction position, the company’s director “burst out laughing” and said, in between fits of laughter, “I have had young ones run away from the workload. You would have a heart attack and I don’t want that on my site… You are too old, cheers mate.”

“Making a hiring decision on the basis of someone’s age is against the law.” says Sean Wilson, CEO of BetterHR.

“If a person applies for a job, the employer needs to assess the application against the inherent requirements of the role.” he adds.

“Its also important for employers to keep good records to prove that they hired the best person for the job lawfully. To help defend against claims. This is particuarly important in cases such as general protection claims. In these cases, it is up to the business owner or manager to prove that they did not take adverse action against an employee or prospective employee that is considered unlawful under the Fair Work Act. Failure to do so can result in big penalties and uncapped damages.”

“If you need to test the extent to which they can physically do the job safely, that’s alright. But denying a person a reasonable opportunity to demonstrate they can do the job on the basis of their age is unquestionably discriminatory.”

Hiring processes based on best-practice HR management, competency-based position descriptions in-writing and timely HR and employment law advice from qualified experts can all help you recruit the best workers lawfully and help you operate successfully.” Sean says.

Claiming age discrimination

The worker was reportedly “stunned, shocked and very offended” at the comments – rightly so – and complained to the Anti-Discrimination Board. The jobseeker also claimed the construction company’s solicitor “belittled and degraded” him in a letter of response to his complaint.’

On top of denying the worker’s claims, the letter said that he “cannot use his age as a shield to deflect from his lack of experience and failure to make an application for the advertised position… the [company] requires its labourer position to be filled by an experienced career labourer. Unlike [the worker], these labourers have not held part time bits and pieces labouring roles.

“[The employer] is disappointed that [the worker] chose to make this complaint. It is a complaint without substance that [the company] proposes to vigorously defend in any tribunal or court of competent jurisdiction.”

It will come as no surprise that the man didn’t apply for the job. What’s worse, due to feeling “humiliated, ridiculed and diminished”, the worker alleges he chose to work in low-paid work outside of the construction industry for six months after the discriminatory phone call – his confidence was knocked.

Following the phone call and the complaint, the worker took his case to NCAT seeking damages for both the initial phone call and the “derogatory” letter that followed.

The NCAT representatives said the letter added to the jobseeker’s pre-existing distress and hurt as it suggested his discrimination complaint was “innuendo” and that the letter essentially mocked his level of experience and work history.

As for the initial phone call that sparked this case, the director denies laughing or that he took issue with the age of the worker as he is 59-years-old himself.

He says that as he was up since 4:30am that morning, and the call took place at 7:30am, that he was likely “very short” with the jobseeker but not discriminatory. He claimed when the jobseeker called and asked what the role entailed, he said: “Wheeling barrows of concrete and excavated material, jack hammering” then told the jobseeker to submit his resume via the online recruitment website before hanging up.

The NCAT representatives didn’t think the director’s story added up. Instead, they chose to side with the jobseeker’s account, as he took comprehensive notes about the phone call the following day and displayed a “serious and sensitive” demeanour.

When the director was giving evidence, NCAT representatives said he was “abrupt, exhibited frustration and temper at times and used… colourful language” which, they believed, mirrored the tone of voice the worker claims he was subjected to on the phone call.

For the allegedly derogatory letter, NCAT ordered an extra $750 to be paid to the worker in aggravated damages.

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