The Fair Work Ombudsman has successfully prosecuted a Thai
restaurant business on the Gold Coast for terminating an employee
upon attaining the age of 65 years of age.
The employee had been working for about 15 years and brought
complaints about underpayment of wages which were disputed by the
As the issues were unresolved the employee sought a redundancy
and severance payment. The employer refused and stated that it was
company policy not to employ any staff that attain the retirement
age of 65 years of age.
The Federal Circuit Court held that this was a breach of the
General Protections provisions under Part 3.1 of the Fair Work
Act 2009 (Cth) which prohibit adverse action based on age. The
Federal Circuit Court ordered the company to pay the employee
$10,000 for loss suffered plus $20,790 in fines. The company's
joint directors were fined a further $4,180 each.
This was despite the Court's acknowledgment that there is a
general misunderstanding within the community about retirement and
the retirement age, and the reliance by the directors upon advice
provided by their long-standing trusted accountant that it was
lawful to establish a compulsory retirement age of 65 years of age.
The Court held that the accountant had failed his clients and they
must pay the price.
Employers should be aware that retirement ages are not
compulsory and that workers may elect to work beyond 65 as a
legally protected right. It may be possible to discriminate against
a person based on their age if the employee cannot fulfil the
inherent requirements of the role but this requires considered
legal advice and should be approached with caution.
Case note: Fair Work Ombudsman v Theravanish
Investments Pty Ltd  FCCA 1170 (2 April
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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.
Australian employees receive certain entitlements (such as annual leave and superannuation) where contractors do not.
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