In a decision delivered by the Federal Court today, a Western Australian labour hire company has been found to have discriminated against a worker because of his age.
The Federal Court ruled that CoreStaff WA Pty Ltd took adverse action when it refused to hire the qualified 70-year old grader because of his age.
In October 2018, the worker submitted an application for a grader operator role in the Pilbara. The application was forwarded by the CoreStaff Area Manager to a contractor, Gumala Enterprises.
CoreStaff provides labour hire and permanent recruitment services to clients across a range of industry sectors.
Gumala provides civil construction, transport and mining related services to clients in the Pilbara Region of Western Australia.
On 25 October 2018, a Gumala Enterprises HR Advisor emailed the CoreStaff Area Manager stating:
“I have some feedback on the grader ops.
… we had his details already, he applied directly with us. He has all the tickets we are looking for however he [sic] age is a concern – 70 years old.”
The CoreStaff Area Manager replied:
“Wow didn’t know that however I would have found out eventually… [sic] yes will certainly keep looking.”
Later that day, the CoreStaff Area Manager emailed the worker stating:
“Sorry…, no joy with the role at Gumala due to your age mate.”
The Federal Court’s ruling today relates to the liability of CoreStaff. CoreStaff argued there was no refusal to employ the worker because there was no vacancy.
The Court ruled:
“The Commissioner has met the obligation to establish the objective facts [that] there was a vacancy that CoreStaff was looking to fill for a grader operator to be placed on labour hire assignment and that it refused to employ [the applicant] because of his age.”
Justice Banks-Smith in her decision went on to conclude:
“I accept that [the area manager] was influenced in his conduct by Gumala's email of 25 October 2018 in which Gumala said it had concerns about [the applicant’s] age.
“The email led to [the area manager] considering the position. ... Having found out about [the applicant’s] age, [the area manager] then separately and independently considered age as a reason for refusing to employ [the applicant].”
“[The area manager] then expressly told [the applicant] that the reason for him being unsuccessful in his application - and it was the only reason given - was his age. I find that [the applicant’s] age was a substantial and operative reason for [the area manager] (and so CoreStaff) refusing [the applicant] employment.”
Gumala has previously made admissions as to liability.
The Federal Court will list the matter for a penalty hearing to be heard at a later date.