There is no 'retirement age' for employees
In the recent decision of Talbot v Sperling Tourism & Investments Pty Ltd a 75 year old driver successfully argued that he had been discriminated against in being dismissed because of his age.
The employer argued that the driver’s dismissal was due to performance reasons. The employer highlighted that the driver had 3 speeding infractions and was involved in 2 at-fault incidents. Following the first at-fault incident, the driver was dismissed in July 2007 via a facsimile which stated that, “In good faith and recognizing you are now aged in your early 70’s, what I suggest is that it’s time to step back from [the] frontline...” By August 2007, the driver was re-engaged by the employer on a reduced basis. The driver argued that he’d effectively been demoted and denied the benefit of working full-time. The final dismissal occurred in January 2008 after the second at-fault accident in which the driver was allegedly attempting to avoid being hit by a vehicle in front of him and reversed into a car behind him.
The Tribunal found that age was at least one of the reasons for his dismissal and that the driver wasn’t otherwise provided with any prior warnings or counselling regarding the accidents, or given the opportunity to explain his version of events. It was also noted that treatment of the driver was harsh compared to how other drivers (who were not 75 years old) had been treated in similar circumstances.
Ultimately, the Tribunal agreed that the treatment of the driver by the employer amounted to age discrimination and awarded $25,323 in compensation.
Key Points: Age is not a factor that employers can rely upon when terminating an employee’s employment. There is no ‘retirement age’. If an employee wishes to continue working into their latter years, they’re entitled to do so. Termination of their employment can only be based on performance, misconduct or the position itself no longer being required. To dismiss an employee due to age, even if this is only part of the reason, is unlawful discrimination.
Lisa Aitken is an accredited specialist in workplace relations law and the Managing Partner of Aitken Legal, a law firm specialising in employment law for employers. www.aitkenlegal.com.au. The information in this column is intended as a guide only. Liability limited by a scheme approved under professional standards legislation.
