The Federal Court has penalised a WA labour hire company $20,000 and a contractor with $9,000 over an age-discrimination claim.
CoreStaff and Gumala Enterprises were found to have discriminated against a worker when they refused to hire a qualified 70-year-old grader operator because of his age. The Court ordered 50 percent of the penalties, totalling $14,500, be paid to the affected worker who was denied the opportunity to work.
In October 2018, the worker submitted an application for a grader operator role in the Pilbara to CoreStaff, which provides labour hire and permanent recruitment services to clients across a range of industry sectors.
The application was forwarded by a CoreStaff area manager to Gumala Enterprises, which provides civil construction, transport and mining-related services to clients in the Pilbara region.
Email message noted that ‘age is a concern’
On 25 October 2018, a Gumala Enterprises human resources advisor emailed the CoreStaff area manager stating:
“I have some feedback on the grader ops. … we had his details already, he applied directly with us. He has all the tickets we are looking for however [his] age is a concern – 70 years old.”
The CoreStaff area manager replied: “Wow didn’t know that however I would have found out eventually… yes will certainly keep looking.”
Later that day, the CoreStaff area manager emailed the worker stating: “Sorry … no joy with the role at Gumala due to your age mate.”
CoreStaff’s liability was determined by the Federal Court last year after a contested hearing.
Age used to deny employment opportunity
In Friday’s penalty decision, the Court said: “The discrimination against [the worker] was clear – the only roadblock to his continued consideration for employment was his age. Conscious recognition was given to his age by both Gumala … and by CoreStaff … and that factor was then relied upon to deny his opportunity of employment.”
In determining the penalty to be imposed on CoreStaff, the Court noted the absence of any indication of remorse on its part.
“I note that CoreStaff, by the nature of its business, is in the position to disabuse its clients of any misunderstanding as to discriminatory conduct in employment and so to reduce the prospect of such conduct occurring. It is to be hoped that it will be attuned to this potential in the future.”
However, Gumela had apologised and admitted liability at an early stage.
According to Australian Building and Construction Commission (ABCC) Commissioner, Stephen McBurney, the Fair Work Act 2009 makes it clear that it is unlawful for any employer to take adverse action against an employee or prospective employee because of their age.
