A recent decision has highlighted the need for employers to
comply with their anti-discrimination obligations during interviews
with prospective employees, or risk potential litigation.
The Queensland Civil and Administrative Tribunal
(QCAT)1 has ordered a Gold Coast manufacturer, Goldpath
Pty Ltd, to apologise to a potential employee for unlawfully asking
him unnecessary questions about his age and parental status during
an employment interview.
The complainant attended an interview for a job at
Goldpath's warehouse. The questions asked of the complainant
during the interview included whether he had any children, what his
date of birth was and the number of sick days he had taken in his
The complainant alleged that the questions were a request for
unnecessary information in breach of section 124 of the
Anti-Discrimination Act 1991 (Qld) (Act). QCAT agreed and
held there was no justifiable basis upon which the questions could
reasonably be required for a purpose that did not involve
A timely reminder
This case serves as a timely reminder that employers should not
request information from a person that may lead to a basis for
unlawful discrimination. The conduct is expressly prohibited in
Queensland, and due to the reverse onus of proof for employment
discrimination claims under the Fair Work Act 2009 (Cth),
should be avoided generally in every State and Territory.
To avoid potential litigation, employers should ensure that
people conducting interviews ask questions that are only relevant
to the skills and abilities required for the position.
Examples of questions that should be avoided include:
"How old are you?"
"Do you have any children?"
"Are you married?"
"Have you ever been on workers'
Asking these types of questions could lead to incorrect
assumptions about, for example, the applicant's ability to
travel or perform overtime or whether they will have the ability to
undertake manual labour, whether this was the intention of the
interviewer or not. It also won't matter if these types of
questions are raised even during general conversation.
Instead, questions should focus on the requirements of the
position. For example:
"The position requires a significant amount of interstate
travel. Are you able to meet this requirement?"
"The position requires physical manoeuvrability and
lifting. Would you have any difficulty undertaking the physical
components of the role?"
"A position of this seniority requires a reasonable degree
of flexibility in working hours. Are you able to be flexible in
"Are there any factors that would prevent you from meeting
the requirements of the position?"
To ensure that statutory and legal obligations are met, all
employers should adopt a 2-step approach to preventing
discrimination in the workplace:
regularly undertake a review of their anti-discrimination
policies and procedures and include in this review their
recruitment and interview procedures, to ensure that they
accurately reflect the current legislative requirements, and
ensure that all staff undergo regular training in the policies
and procedures so that they are aware of and understand their
Failure to take these steps may leave an employer in a position
where they are unable to successfully defend a discrimination
Long experience representing many of Australia's leading employers has taught us that in employment litigation the identity of an employee's representative is a major factor in how employee litigation runs.
Treasurer Scott Morrison recently announced changes to a number of 2016 Budget superannuation contribution measures.
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