Chauffer who agreed to retire at 65 to be paid $40,000 after ageist dismissal
A driver who lost his job after his 65th birthday will receive $40,000 compensation after a national workplace arbitrator ruled that the Indian consulate had unfairly dismissed him.
The driver and messenger had been employed full-time by the Indian Consulate General in Sydney for more than a decade under an employment contract that included a clause stating that he would retire when he turned 65 in 2015.
The case highlights the extent to which Australia’s unfair dismissal and anti-discrimination laws can be applied, including where an employee has agreed to terms set out in an employment contract.
The consulate argued that the man was not “dismissed” because he had worked under contract for a certain period of time, and that if he was dismissed, the dismissal was not harsh, unfair or unreasonable.
In the past, many cases in the public sector have resulted in terminations being authorized due to age. For example, in 1998 the federal court ruled that a Commonwealth public sector decision requiring retirement at age 65 for Australia Post was legal. However, the Civil Service Act 1999 abolished age-based compulsory retirement from the public service.
The Australian Constitution requires Supreme Court judges to retire at age 70, and other courts across the country have similar rules. This largely prevented judges from weakening or drying up in office, as happened in the United States.
More recently, in 2021, Qantas pilots challenged the company’s decision to fire them when they turned 65. Qantas argued the pilots had failed to meet the inherent requirements of the pilot role, including complying with International Civil Aviation Organization rules that prohibit a pilot from flying in most airspace after turning 65. In this case, the commission found that the dismissals were unfair.
In the driver’s case, the consulate argued that the Indian government’s employment laws require termination at age 65 for a variety of reasons, including an increased risk of sudden incapacitating health events, declining cognitive function, and weakening of situational awareness as people reach their 60s.
However, the commission found that the consulate provided “no scientific evidence” to substantiate these claims and that there was no medical evidence to show that the driver was unable to perform the duties of his duty.
“The implementation of the government of India’s policy on compulsory retirement… is in no way comparable to the status of the International Civil Aviation Organization rules,” the commission said.
There was uncertainty as to whether the man had been dismissed by the employer due to his acceptance of the employment contract. However, the commission ultimately determined that the man’s employment was terminated on the initiative of the consulate.
When the driver turned 64, he reviewed his employment contract and met with a consul, saying that he did not want to retire because he was fit to work and that he would “suffer financial loss” if he lost his job at 65.
No performance or behavioral issues were noted during the driver’s employment.
The consul said the decision had to be approved by the ministry in New Delhi. Later that month, the consul told the man that although he had contacted the ministry several times, the ministry had not responded. The man was also denied written consent to termination.
The following month the consulate was advertising the position. It delayed issuing the man a final pay stub, including $28,500 in untaken long service leave and annual leave owed to him, until the following year.
The driver said the termination had a serious impact on his financial situation, as he still had a mortgage, was two years away from being eligible for old-age pension, and his wife’s job only paid around minimum wage.
Judith Wright, deputy chair of the Fair Work Commission, found the man was dismissed by the consulate and there was no valid reason for the dismissal.
“There was no evidence before the commission about the reasons for mandatory retirement age in India,” he said. Requiring a potential employee to agree to compulsory retirement as a condition of employment in Australia would also likely offend the worker. Age Discrimination Acthe added.
Previous cases before the Commission had found that sovereign foreign states and their diplomatic missions were not immune from unfair dismissal cases.
Wright said the Indian government should reconsider its mandatory retirement requirement for employees in Australia but “should disguise it instead”. [the requirements] The consulate relied on this to reject the driver’s application.
The commission found that there was no “genuine agreement” between the driver and the consulate for the driver to terminate his employment at age 65, as this was a condition that the consulate was not authorized to waive.
“If [the chauffeur] “If Wright had not accepted the period requiring him to retire at the age of 65, he would not have been offered a job by the consulate,” he said.
Even if it was a real agreement, Wright said it was written to deny employees access to the commission’s unfair dismissal processes.
“[The chauffeur] “He has served the consulate well for a long time and will have difficulty finding alternative employment due to his age, lack of knowledge of English and lack of qualifications,” he said.
The man immigrated to Australia from China in 1988, speaking English as his second language, and had not gained any higher education or vocational skills.
The driver said that he applied for a job at a cleaning company because he lost his job at the consulate, but was told during the interview phase that there was no suitable job for him at his age.
The driver was unable to return to work due to the incident. Foreign States Immunities Acthowever, $43,519 was awarded in compensation.
The Business Briefing newsletter delivers big stories, exclusive news and expert insights. Sign up to receive it every weekday morning.
Millie Muroi is an economics writer covering the workplace and the economy for The Sydney Morning Herald and The Age. He was previously an economics correspondent for the Canberra Press Gallery and a banking writer in Sydney.Connect with: X or email.
