A Thai restaurant which sacked a waiter because he had reached what they said was retirement age of 65 has been found guilty in the Federal Court of age discrimination.
The Fair Work Ombudsman’s first litigation relating to discrimination on the grounds of age ended with the restaurant operators being fined $29,150 for contraventions of age discrimination laws.
The waiter was also paid compensation of $10,000.
The restaurant management wrote to the employee saying that it was “the policy of the company that we do not employ any staff that attains the retirement age, which in your case is 65 years”.
In his written response to the company, the employee said: “My effectiveness as a food and beverage attendant when I turn 65 is no less than my effectiveness at the age of 64.”
The company, Theravanish Investments Pty Ltd has been fined $20,790. Its joint directors and equal shareholders, Nopporn Theravanish and Michael Theravanish, have also been penalised a further $4,180 each.
They currently operate two Thai restaurants at Broadbeach and Surfers Paradise and previously operated restaurants at Nobby Beach and Robina.
Judge Michael Burnett has also instructed Theravanish Investments to pay $10,000 compensation to the former employee.
Fair Work Ombudsman Natalie James says discrimination against employees on the grounds of age is unlawful and the outcome of the case serves as a warning to employers that it won’t be tolerated.
“Limiting employment opportunities of workers because of their age is totally unacceptable and we take such conduct very seriously because of the impact it has on individual workers and the labour market generally,” Ms James said.
“Discriminating against workers because of their age can have a terrible impact on their self-respect and dignity and deprive them of an equal opportunity to make a positive economic benefit to the company and the wider community.
“We encourage employees to speak up against discrimination they may have encountered in the workplace.”
Under the Fair Work Act, it is unlawful to discriminate against employees on the grounds of pregnancy, race, colour, sex, sexual preference, age, physical or mental disability, marital status, family or carer responsibilities, religion, political opinion, national extraction or social origin.
The 65-year-old employee in the Theravanish case began working for his employer in late 1996 and subsequently worked at a number of the company’s restaurants until 2011.
His duties included taking orders, serving dishes and water, setting tables and greeting and assisting customers when asked to by the manager.
The employee took long service leave in April, 2011. When he was due to return to work, Nopporn Theravanish told him that he would work part-time.
The employee subsequently met with his employer and raised questions about a number of issues, including his pay, later putting his concerns in writing.
Shortly after, he received a letter drafted by the company’s accountant informing him of the company’s plans to terminate his employment on his 65th birthday. The accountant who drafted the letter had no workplace relations experience or training.
Since it was empowered to investigate discrimination in 2009, the Fair Work Ombudsman has received more than 80 complaints relating to age discrimination, making it among the top-five types of discrimination investigated by the Agency.
The majority of age discrimination complaints come from mature-age workers, with workers aged as young as their 40s having complained they have been discriminated against because of their mature age.
The Fair Work Ombudsman has received age discrimination complaints from mature-age workers in a range industries, with the accommodation and food, health care and social assistance, and retail industries prominent.
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