A 61 year old construction worker made a complaint to the NSW Anti-Discrimination Board when he called up a Sydney based Builder in November 2019 asking about a job. He claimed that when he called to find out more information about the casual construction position, the company’s director “burst out laughing” and said in between fits of laughter, “I have young ones run away from the workload. You would have a heart attack and I don’t want that on my site… You are too old, cheers mate.”
The Job Seeker reported feeling “stunned, shocked and very offended.” He made a note of the conversation the next day and filed a discrimination complaint against the construction firm the next week. He told the tribunal that he had lost confidence to undertake physical work and did not apply for construction jobs for many months.
The Director denied laughing or that he took issue with his age, as he is a 59 year old himself. The Director explained that he had been up working since 4.30am and that he took the Job Seeker’s call at 7.30pm and was “very short” with him but not discriminatory. He claimed he responded when asked what the job entailed “wheeling barrows of concrete and excavated material, jackhammering” then told the Job Seeker to submit his resume via the online recruitment website before hanging up.
After hearing from both men and considering the timing of the initial complaint, the NSW Civil and Administrative Tribunal found the Job Seeker’s version was more probable.
The phrase “you’re too old” and a reference to young workers running from the workload amounted to unlawful discrimination on the ground of age, in contravention of the NSW Anti-Discrimination Act, the tribunal said.
The Director’s firm was ordered to pay $2990 to compensate the Job Seeker for lost work and hurt feelings.
Another $750 in aggravated damages was awarded after a solicitor acting for the construction firm used “derogatory language” in a letter to the Job Seeker in 2020.
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