In our article about a bullying case leading to a record $5.2 million award of damages, we highlighted how employees are now increasingly making general protections claims. However, general protections claims can even be made by people who aren’t even employed in your business. Prospective employees or contractors are protected from being adversely affected due to a variety of attributes including but not excluded to, race, religion and gender. These are called protected attributes.
When searching for a new employee many employers will simply reject applicants they perceive will not fit in with the ‘culture’ of the organisation. This rejection can be genuine and could be just based on how the applicant comes across in their interview. However, there are dangers involved in providing vague reasoning for the applicant’s failure to become employed as the applicant could assume they have been adversely affected due to some sort of protected attribute, like age for example. There are numerous examples of employers that have been caught out when rejecting applicants based on the profile of the person they want for the role.
In Virgin Blue Airlines Pty Ltd v Hopper & Ors  QSC 075, job applicants for the position of flight attendant were considered based on “behavioural competencies”. The employee had to have ‘Virgin flair’ or possess a personality to make the flight experience ‘fun’ for Virgin customers. As a result, eight job applicants filed a complaint against the airline claiming that the ‘Virgin flair’ test had discriminated against them. The court determined that while the behavioural competencies test was not inherently discriminatory, it was found that only one job applicant above the age of 36 was offered a job, and this was held to be discrimination against applicants based on their age. Damages and interest in excess of $80,000 as well as costs were awarded to each applicant.
Under the Fair Work Act 2009 (FWA), there is now an easier way for disgruntled applicants to make these sorts of claims, based on the applicant making a general protections claim that “adverse action” has been taken against them because the employee has a “workplace right”. In the Virgin case, the workplace right was the right not to be subjected to discrimination and the “adverse action” was the refusal to employ the prospective employee under the FWA s342(1) Item 2.
A Recent Call
A recent call from a client of ER Strategies highlighted this issue. The prospective, but unsuccessful applicant for a job queried the company as to why they were not chosen for the position. The client wanted to know how to handle this type of call. When we asked the client why the employee was not selected or interviewed, the client said it was due to the person being “too experienced”. Making this kind of suggestion to an older person would be a ‘red flag’, indicating age as the real reason. This type of comment could lead to a claim of adverse action, so care is needed when responding to such a query to avoid the suggestion that the applicant is being unlawfully discriminated against.
In the case of our caller, it became clear, after further questioning, that age was actually not the real reason the applicant missed out on an interview. In fact, the employer had a legitimate reason, namely that the person who was selected had worked for them in the past and had more practical experience than the other applicant. Yes, the successful applicant was younger, but they could explain that it had nothing to do with age.
Steps to Follow
- Have clear selection criteria for the role, so that objective differences can be determined.
- Ensure that selection criteria has nothing based on any of the protected attributes under the general protections provisions.
- Review all applicants fairly against your criteria and identify the best candidate.
- When rejecting candidates, you can include reasons as to why they didn’t receive the job offer, making sure to highlight what they lacked on your criteria and avoiding any mention or insinuations of protected attributes.
Areas of Exception
Employers can legitimately advertise for junior employees in states and territories other than Victoria, Queensland or West Australia, as these jurisdictions provide for lawful positive discrimination in favour of young persons.
In any event, you can still indicate the nature of the role as being “entry level” or “suitable for applicants for their first position”, etc., and this is legally acceptable. It will only be an issue in Victoria, Queensland or West Australia if you refuse to engage someone because of their age.
The best example of this exception currently is the Federal Governments JobMaker scheme, which limits access to the scheme to employees in the age range 16 to 35 years of age. Employers can claim $200 a week when they hire 16 to 29–year–old employees and $100 a week for an employee aged 30 to 35 years old. (For more information, see our JobMaker article and webinar).
Genuine Occupational Requirements
In each of the states and territories, there is a common right to recruit for specific occupational requirements. Clients should seek our specific professional advice, but in general this would include situations such as:
- Selecting an actor for a dramatic performance, or an artist’s or photographic model based on age, race or gender, for reasons of authenticity.
- Physical characteristics only possessed by people of a particular sex.
- Considering same sex persons to conduct body searches, for example.
- Employing persons of a particular religion to teach in a school.
- Membership of a particular political party for a position as an advisor to a political party or a worker in the office of a member of Parliament.
Getting Our Help
If you have any questions or need assistance with any employee claims or complaints, we encourage you to call ER Strategies on 1300 55 66 37.