Age Discrimination in the Workplace

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Age Discrimination in the Workplace – Too old to work?

Ageism is essentially bias against a person or group on the grounds of age. An ageing society means that greater numbers of older people may want, or need to remain in the workforce for longer periods. However, older people often encounter barriers to full participation in society. This is most marked with respect to employment.

In the workplace, we need age diversity to profit from the invaluable contributions that each age group can offer. Ageism is present in every stage of employment, from recruitment and selection to terminations.

It seems that ageism permeates our culture and society. It is exacerbated by negative connotations in our language, literature and media. Myths and stereotypes about older people in the workplace continue to present a barrier for older workers in obtaining and retaining employment. Some stereotypes tend to present older workers as being; “unadaptable to change”, “set in their ways”, “technologically illiterate”, “dependent” or “irrelevant.”

Despite an increase in mature age workers in the workforce over the last two decades, the biggest hurdle that these individuals face continues to be discrimination, with some essentially coerced out of the workforce. If older workers are perceived as less productive and are forced to retire, the idea that older workers are not productive, is reinforced and further perpetuates discrimination.

What are the Statistics?

According to a 2004 survey conducted by the Australian Bureau of Statistics ‘Mature Age Person Statistical Profile’, out of 1500 people surveyed aged between 45 and 74, 67% had concerns about the prospect of re-entering the workforce or advancing in their current jobs. In 2004, close to one-third (32%) of people participating in the labour force were aged 45-64 years, up from 24% in 1983. This increase not only reflects larger numbers of people entering this age group as the baby boomers age, but also changes in labour force participation over the period.

Another 2004 survey conducted by Hudson Global Resources and Human Capital Solutions, also found that less than one-third of organisations proactively seek to attract and retain mature age workers.

What are the Age Discrimination Laws?

All States and Territories have legislation in place, which, at least in theory, protects people from discrimination on the grounds of age. In 2004, the Federal Government passed the Age Discrimination Act. The act seeks to protect the interests of both younger and older Australians, and covers areas such as; employment, education, provision of goods and services and facilities and accommodation etc.

In Western Australia, the Equal Opportunity Act 1984 (WA) covers grounds of unlawful discrimination such as; sex, sexual orientation, marital status, pregnancy, race, religious or political conviction, age, racial harassment, impairment, family responsibility or family status, gender history.

Case Law

Even though potential employers cannot advertise age preferences for jobs, some advertisements still provide numerous clear messages about the preferred age range, through the use of age specific descriptors, such as ‘a young, exciting environment’ etc. While such language or criteria can be used legitimately for employers to find a suitable employee, they can also hide ageist biases.

For example, in Hopper & Others v Virgin Blue Airlines Pty Ltd [2005] QADT 28, the Queensland Tribunal found that Virgin Blue had discriminated against eight female complainants, who had applied for the positions of “cabin crew member”, because they were over the age of 35. While the criteria of ‘Virgin Flair’ did not contravene anti-discrimination laws per se, the assessors’ application of their preference for younger people, was more in line with the concept of ‘Virgin Flair’, described as – ‘a desire to create a memorable, positive experience for customers: the
ability to have fun, making it fun for the customer.’

In Gilshenan v P.D. Mulligan (Newcastle) Pty Ltd (1995) EOC 92-781 a 64-year-old butcher was transferred from the butcher’s shop to a sausage-making factory. He alleged that the transfer was intended to induce him to retire; the respondent however claimed that he was too slow at his job and was not fulfilling the inherent requirements of the position. The Tribunal found that he was competent at his previous position, and ruled that the respondent had discriminated against him on the basis of his age.

Similarly in Goodworth v Marsdens Motors Pty Ltd (No 1) [1996] NSWEOT; EOC 92-837. Ms Goodworth was forced to retire after six years of employment with the respondent. The company claimed she was inefficient, incompetent and the office was overstaffed. The Managing-Director however purportedly told a trainee that Ms Goodworth was ‘older and her health is not good. We want someone younger. You can do the same job that she did.’

Skinner v Lightning Bolt Pty Ltd [2001] EOC 93-167. The complainants, aged 58 and 57 were laid off after three months of employment. The respondents claimed there was not enough work for them due to a down turn in trade, as a large client had gone into liquidation. When one of the complainants returned to the respondent to get a reference, he noticed two younger men aged 36 and 21 doing the jobs of the two complainants. The Tribunal found that there was no shortage of work for the complainants, and that they were in fact discriminated against because of their age.

Solutions to Ageism in the Workplace

While a well implemented ageing strategy will improve morale, teamwork, cooperation and productivity across all levels of the organisation, workplace policies must be framed carefully. Ageism is just one of the many challenges organisations must address in order to embrace one of the only remaining segments of the workforce in which participation can be increased.

The following HR practices are important;

1. Introduce measures to combat ageism such as education and awareness programs;
2. Restructure work practices to accommodate emerging population trends;
3. Train staff to enhance the organisational skill set; and
4. Train managers in age management strategies and age discrimination.

Just as organisations put in place strategies and policies to address issues such as workplace bullying or harassment, employers must consider the same in order to prevent age discrimination from gaining a foothold in their workplace.

Tailoring policies and practices for age diversity is an important emphasis in the management of staff, and can be a demonstration of management and organisational flexibility. Organisations that discriminate on the basis of age, are limiting their chances of recruiting and retaining the best people.

As people live longer, engage in lifelong learning and pursue intellectual and skill growth throughout life, diversity in the workplace will become more common. In their quest to open doors to employment, development and opportunities for all working people, human resources specialists should not be constrained by age issues.

If you have any questions regarding issues of ageism, or other concerns in your workplace, please contact one of INVision’s Directors via our website at www.inv.com.au

References:

http://www.smartmanager.com.au/web/au/smartmanager/en/pages/111_age.html
http://www.austlii.edu.au/au/journals/QUTLJJ/2007/6.html
http://au.hudson.com/documents/emp_au_18_august_2004.pdf
http://au.hudson.com/documents/emp_au_Whitepaper_ageism.pdf
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Workplace Investigations – The Employee and the Employer

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The workplace is becoming an increasingly challenging environment for both staff and management alike, with grievances and the reporting of allegations of inappropriate behaviour on the rise. Coupled with the rise in regulatory requirements, there are expectations for greater levels of responsiveness, accountability and transparency. Increasingly, organisations are recognising the need to respond to these situations in a timely and appropriate manner.

However, a very important element in the employment relationship, is the trust an employee has in the employer that he or she will not be treated unfairly, and on the part of the employer, that the employee with not act unfairly in a manner detrimental to the employer.

Why Would I Need to Conduct a Workplace Investigation?

Often these issues can pose significant risks to an organisation. It is important, that unless workplace issues are dealt with quickly and effectively, the effect upon the organisation can be costly in terms of loss of valuable personnel, time, money and productivity, and may adversely affect an organisation’s good reputation.

Who Should Conduct the Investigation?

A common response in the past was to have the complaint or issue investigated by a Supervisor, Manager or a HR consultant, using an informal approach to resolve the situation. The experience of many is that once inquiries are commenced, and the lid is lifted from the proverbial ‘can of worms’, matters become much more complex than the initial information may have indicated.

Do They Have the Right Skills and Experience?

The organisation needs to satisfy itself that the person asked to carry out the task, has the necessary skills and knowledge to be able to conduct the investigation, in accordance with the principles of Natural Justice and Procedural Fairness.

It is essential that issues such as potential conflicts of interest are identified. A perception of bias on the part of the Investigator held by the complainant, respondent, witness or observer can undermine and taint the entire investigation and any outcomes.

Although not every workplace inquiry needs to be conducted as a full and formal investigation, where a full investigation is required, then it is paramount that the person conducting the investigation is seen to all those involved and observers as being unbiased and skilled to undertake the task. The perception that an investigation is being conducted fairly is just as important as the reality that it is being done so.

What are the Benefits of Appointing an External, Independent Investigator?

The investigation may identify systemic problems within the workplace which could lead to criticism of the organisation. In many instances, an internal Investigator may find it difficult to raise issues that they feel may not be popular with their Managers or Directors.

Adverse findings may result in ill feelings against the Investigator, which may cause further difficulties if the Investigator is required to work with those involved in the investigation during the normal course of business.

It will often be the case, that in serious matters resulting in an investigation, there are distinct advantages in an independent external Investigator being appointed. An independent Investigator will only be influenced by the evidence, they are removed from the organisational culture and politics, and the findings will be based on facts, enabling the organisation to make appropriate decisions.

Do You Have Policy Governing the Conduct of Investigations?

As an employer, you can prevent unnecessary disputes and stress in the workplace, by ensuring that your organisation has clear and transparent policies, and procedures in place governing the conduct of an investigation. The policies should apply equally to investigations conducted by another employee, or an independent Investigator.

Case Law – The Importance of Conducting a Proper Workplace Investigation

The case of Nikolich v Goldman Sachs JB Were Services Pty Ltd [2006] FCA 784, relates to company policies, and also highlights important lessons in investigating workplace grievances, and in particular, the requirement to resolve factual disputes, make clear findings and the importance of a formal framework.

The Facts:

Mr Nikolich worked as a client financial adviser for Goldman Sachs JB Were. In Canberra, advisers service a portfolio of clients, the success of which impacts on their remuneration. Mr Nikolich formed a team of advisers to improve the level of customer service.

When one of the team members left, Mr Nikolich understood that the departing employee’s clients would continue to be serviced by the remaining team members. However, Mr Nikolich’s manager, Mr Sutherland, reallocated the clients largely outside the team. Mr Nikolich lodged a formal complaint about the reallocation and alleged victimisation and intimidation by Mr Sutherland following the reallocation.

The grievance was handled by an HR manager based in Sydney. She immediately contacted Mr Nikolich and arranged a telephone conference. Mr Nikolich was unsure what outcomes he sought, although he wanted something done and did not want his position jeopardised.

The HR manager checked the reallocation with senior management, who said it was appropriate for the branch manager to allocate clients. However, Mr Sutherland handled the reallocation poorly and morale was suffering as a result. Around August 2003, the HR manager sought a response from Mr Sutherland, who denied most allegations. Mr Nikolich subsequently raised a new complaint about Mr Sutherland allegedly transferring one of Mr Nikolich’s clients to himself.

In December 2003, the HR manager provided written outcomes of the investigation. She acknowledged a lack of transparency. However, she determined that: management’s decision to reallocate the clients was “appropriate”; there was no attempt by Mr Sutherland to intimidate or cause stress to Mr Nikolich; and Mr Sutherland had stepped down from his management role.

The Result

Mr Nikolich suffered a depressive condition, which led to the termination of his employment. He brought a claim for breach of contract in the Federal Court.

The Federal Court found that the handling of Mr Nikolich’s complaint was “extremely inept” because there was no recognition of the seriousness of the complaint (an alleged abuse of power), the HR manager should have travelled to Canberra to conduct interviews (if necessary, a venue should have been hired for interviews to ensure confidentiality) and no effort was made to resolve the factual conflict between Mr Nikolich and Mr Sutherland. In particular, key witnesses were not interviewed.

The Cost

The process was found to be in breach of the company’s grievance handling procedure and the employee was awarded $515,869 in damages. The employer is currently appealing the decision.

If you are concerned about any aspect your workplace investigations, please contact one of INVision’s Directors via our website at www.inv.com.au

Recording Private Conversations in the Workplace

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What happens if an employee secretly records a discussion he or she is having with you during a performance management meeting?

What if they are also recording conversations of other employees without their knowledge or consent?

Is the employee allowed to use their smart phone, BlackBerry, iPod or any other small recording device to secretly record a discussion about work performance?

In this brave new technological world, smart phones and other pocket-sized recording devices have given both employees and employers powerful tools to easily record playbacks of sensitive workplace conversations; sometimes, with the intent to take legal action or subject the parties or the organisation involved to public criticisim.

There is a growing amount of litigation in this area, so let’s take a brief look at what the law says.

The Law

Unfortunately, the laws in this area are complicated, and legislation varies throughout the States and Territories. However, all State and Federal legislation restricts the recording and publication of private conversations and telephone conversations, without the consent of the parties.

In Western Australia, the Surveillance Devices Act 1998 (Act) regulates the use of listening devices, optical surveillance devices and tracking devices. The Act may apply to workplaces where surveillance devices such as security cameras, closed circuit TV, telephone monitoring and GPS systems are being used.

It is generally an offence to use, install or maintain:

• listening devices to record or listen to a private conversation;
• optical surveillance devices to record visually or observe a private activity; or
• tracking devices to determine the geographical location of a person.

The Act defines a private activity as;

“any activity carried on in circumstances that may reasonably be taken to indicate that any of the parties to the activity desires it to be observed only by themselves, but does not include an activity carried on in any circumstances in which the parties to the activity ought reasonably to expect that the activity may be observed”.

Therefore, recording a private conversation in the workplace could be considered an offence, for example; where disciplinary action is being discussed between an employer and employee, and it is being recorded without the consent of the parties involved. The parties ought reasonably to expect that the conversation would not be recorded or listened to by a third party.

A listening device is defined as;

“any instrument, apparatus, equipment, or other device capable of being used to record, monitor or listen to a private conversation or words spoken to or by any person in private conversation, but does not include a hearing aid or similar device used by a person with impaired hearing to overcome the impairment and permit that person to hear only sounds ordinarily audible to the human ear”
Therefore, smart phones, smart pens, Blackberry’s, iPods, iPhones etc are all classified as listening devices.

A private conversation means;

“any conversation carried on in circumstances that may reasonably be taken to indicate that any of the parties to the conversation desires it to be listened to only by themselves, but does not include a conversation carried on in any circumstances in which the parties to the conversation ought reasonably to expect that the conversation may be overheard.”

Therefore, if for example the performance management discussion is taking place in an office with the door open, or in an open plan environment, then it won’t be consdiered to be a private conversation.
However, there is case law which indicates this does not apply if the person recording the conversation believes that the recording is ‘reasonably necessary’ for the protection of his or her lawful interests. This question is determined objectively (ie. not what the person recording thinks, but what is reasonable in the circumstances).

Simply put, the laws in this area are not ‘clear cut.’

Case Law

Eduard Christian Sent v Primelife Corporation Ltd [2006] VSC 445

The employees in this case were the former CEO and deputy CEO of the employer of a company in Victoria. Following the termination of their employment, the employees brought claims against the employer alleging that the employer had breached its contractual obligations by wrongfully terminating their employment. The employer argued that the employees had engaged in conduct warranting summary dismissal (i.e. dismissal without notice).

The court held that the employees’ conduct (which included tapping the telephones of other employees, videotaping meetings, deceptions about the recordings having stopped, and cash payments to resolve industrial disputes) constituted serious misconduct warranting summary dismissal.

The court noted that “not every deliberately false statement by an executive officer to a board of directors… [will] constitute serious misconduct”. However, the employees’ conduct in this instance was deceitful and disobedient concerning matters of security and confidentiality.

If you have any questions regarding these issues in your workplace, please contact one of INVision’s Directors via our website at www.inv.com.au

References:
http://www.employmentlawhandbook.com.au/2011/09/23/can-an-employee-secretly-record-a-performance-management-discussion/
http://www.businessinsider.com/smartphones-spying-devices-2011-7
http://www.mallesons.com/publications/marketAlerts/2007/Documents/8749788w.htm
http://www.ag.gov.au/www/agd/agd.nsf/Page/Telecommunicationsinterceptionandsurveillance_Overviewoflegislation
http://www.commerce.wa.gov.au/labourrelations/PDF/Factsheets/Electronic_Surveillance_09.pdf

Disclaimer:

Any publications and/or resources on published on this website are intended only to provide a summary and general overview on matters of interest. It is not intended to be comprehensive nor does it constitute legal advice.