FWC Finds Mandatory Retirement Clause Resulted in Unfair Dismissal
The Fair Work Commission has found that an employer unfairly dismissed a long-serving employee by requiring him to retire when he turned 65. The employee had worked as a chauffeur for more than 10 years, with his employment ending when he reached the retirement age specified in his employment contract. The employer argued the employment had ended due to the expiry of a fixed-term contract rather than a dismissal, but the FWC rejected this argument, finding the retirement clause effectively required the employee to leave his role because of his age.
The Commission found there was no valid reason for termination and raised concerns that the retirement requirement may amount to age discrimination. The employer relied on concerns about health risks and reduced reflexes associated with older workers, but the FWC found no evidence the employee was unable to perform his duties. The Commission awarded compensation after finding reinstatement was unavailable. The decision highlights that employers cannot avoid unfair dismissal or discrimination obligations by describing age-based termination requirements as fixed-term arrangements. Employers should carefully review any mandatory retirement provisions to ensure they comply with age discrimination laws.
Study Highlights Customers as an Overlooked Source of Workplace Discrimination
New research has identified customers and clients as an overlooked source of workplace discrimination, creating psychosocial risks for LGBTQIA+ employees in customer-facing roles. The study found that some gay and bisexual male workers felt they had to choose between openly expressing their identity and protecting themselves from potential prejudice from customers. The research involved interviews with workers across industries including hospitality, retail, banking and finance, trades, consultancy and not-for-profit sectors.
Findings showed that employees often adjusted how openly they expressed their sexuality depending on the customer they were interacting with, with greater concerns about discrimination when engaging with older or male customers. The researchers highlighted that while many organisations have improved protections against discrimination from employers and colleagues, customer conduct remains an under-recognised workplace health and safety risk. The findings reinforce that employers should establish clear expectations for respectful customer behaviour, provide training for managers and ensure employees are supported when dealing with discriminatory conduct from members of the public.
Victoria Proposes New Protections for AI Use in Recruitment and Workplace Surveillance
The Victorian Government has announced proposed reforms to regulate the use of artificial intelligence in recruitment and workplace surveillance. The proposed changes would amend equal opportunity laws to prevent AI-powered hiring systems from producing discriminatory outcomes based on protected attributes, including race, gender, sexuality and religion. The reforms follow concerns that AI recruitment tools may replicate existing biases and disadvantage certain groups of job applicants in areas such as recruitment, promotion and pay decisions.
The proposed workplace surveillance laws would also introduce stricter requirements for employers using monitoring technology. Employers would be required to inform employees when surveillance is being conducted, consult with workers before introducing or changing surveillance systems, and ensure biometric information is only collected where necessary. The reforms would also seek to limit the use of AI to monitor employees’ movements, physical characteristics and emotional states without a legitimate purpose.
Court Dismisses Workplace Discrimination and Harassment Claims Against Employer
The Federal Circuit and Family Court of Australia has dismissed a former employee’s claims of racial discrimination, sex discrimination and sexual harassment against her employer, finding the allegations were not established on the evidence. The employee had worked for the employer from 2008 until her role was made redundant in 2020, progressing from a labour hire forklift operator and warehouse hand to a transport supervisor. During her employment, she alleged she was subjected to discriminatory comments relating to her race (being Maori), cultural background, accent, appearance, pregnancies and family responsibilities, as well as sexual harassment by colleagues and managers.
The court examined the employer’s workplace policies, including its grievance procedures, code of conduct, equal opportunity policies and online training designed to help employees understand workplace expectations, recognise inappropriate conduct and know how to raise concerns. The court considered the absence of complaints in the employer’s HR records difficult to reconcile with the alleged frequency and seriousness of the conduct, and noted differences between some of the employee’s evidence at trial and earlier accounts of workplace events. The decision highlights the importance of employers having clear complaint pathways, workplace training and effective policies.
Calls Grow for Stronger Workplace Anti-Racism Obligations
Ahead of the Australian Labor Party’s National Conference, the Centre for Indigenous People and Work at the University of Technology Sydney has called for stronger workplace anti-racism laws, including a positive duty requiring employers to implement anti-racism policies, mandatory training, complaints procedures and reporting standards. The proposal reflects recommendations made in the Australian Human Rights Commission’s National Anti-Racism Framework.
New research from the Centre found Indigenous employees working in organisations with both anti-discrimination training and racism complaints procedures were less likely to experience workplace racism and reported higher job satisfaction and lower intentions to leave their employer. However, the research found these measures remain uncommon, with most Indigenous workers reporting their workplace had no formal racism complaints procedure. The findings highlight the potential benefits of proactive anti-racism measures in reducing workplace discrimination and improving employee wellbeing and retention.
High-Profile Media Dispute Highlights Contractual Obligations and Psychosocial Safety Duties
A workplace dispute involving two high-profile media personalities has highlighted the importance of employment contracts, conduct expectations and employer obligations to manage psychosocial hazards. Kyle Sandilands and Jacqueline Henderson’s 27-year on-air partnership ended on 20 February when Sandilands criticised his co-star live on air, describing her as “unworkable” and “off with the fairies.” Having refused to work with Sandilands, Henderson’s contract was terminated shortly thereafter. When he allegedly failed to rectify his serious misconduct, Sandilands’ contract followed closely behind.
The Federal Court was told that Sandilands would readily agree to the misconduct claims, with his barrister noting that “if you buy Kyle, you get Kyle.” The employer argued the conduct amounted to serious misconduct inconsistent with the expectations of the role, while Sandilands’ position is that he was engaged to perform as a “robust character” in an intentionally provocative program. Henderson has also alleged she was systemically attacked and humiliated on-air in a way that left her psychologically unwell, and that no one in the group attempted to intervene. The case is ongoing. It raises an important question: can an employer engage a person to act in an otherwise unlawful manner – for example bullying – because it is part of their job description?
