Company fined $30k for age-based termination threat

    EWIN HANNAN
    The Australian
    April 08, 2014


A QUEENSLAND restaurant worker who was told he would be sacked on his 65th birthday has been awarded $10,000 in compensation and the restaurant’s operators fined almost $30,000.      :-?

The case is the first time the federal workplace watchdog, the Fair Work Ombudsman, has taken legal action against a company on the basis of age discrimination.

After raising questions about his pay, Cheng Peng Lee was informed by his employers that it was company policy to sack workers once they reached retirement age.      :(

The company, Theravanish Investments, operate Thai restaurants on the Gold Coast.

A letter from the company accountant said it was “the policy of the company that we do not employ any staff that attain the retirement age, which in your case is 65 years”.

Mr Lee, 64-years-old at the time, had worked full time for the company for 15 years until taking long-service leave. After returning from leave to part-time work in 2011 and questioning his pay rate, he was told he would be terminated.    

In his written response, Mr Lee said termination of his employment was “irrefutably an act of blatant discrimination”.

“It must be pointed out, my effectiveness as a food and beverage attendant when I turn 65 is no less than my effectiveness at the age of 64,’’ he said.

After the company stood firm, Mr Lee lodged a complaint with the FWO. The Federal Court yesterday fined the company and its owners $29,150 for contraventions of age discrimination and record-keeping laws. The company has been fined $20,790, and its joint directors and equal shareholders, Nopporn Theravanish and Michael Theravanish, have also been penalised a further $4180 each.

They operate two Thai restaurants at Broadbeach and Surfers Paradise, and previously operated restaurants at Nobby Beach and Robina.

Judge Michael Burnett ordered Theravanish Investments to pay $10,000 compensation to Mr Lee.

Fair Work Ombudsman Natalie James said discrimination against employees on the grounds of age was unlawful and the outcome of the case served as a warning to employers that age discrimination would not 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.

that wasnt the union that went into bat for him...

well done... its sad to see things like this still happening... but that fine will stop them doing it again..

There is a reason for doing this though. Their insurance is age discriminatory. My mother was sacked when she turned 80 because the salvos insurance didnt cover ppl over 80. Of course they could always change their insurance but nobody is going to do that are they.

SOB

It's  strange how employers don't want older people -
they have a lifetime of experience to offer -
rather than some pimple faced kid just out of school.

After raising questions about his pay, Cheng Peng Lee was informed by his employers that it was company policy to sack workers once they reached retirement age.      :(

wrote on Apr 8^th, 2014 at 6:39am:

After raising questions about his pay, Cheng Peng Lee was informed by his employers that it was company policy to sack workers once they reached retirement age.      :(

an asian restaurant might have guessed....as soon as you mention a pay increase.. bye bye..

Bobby. wrote on Apr 8^th, 2014 at 6:28am:

It's  strange how employers don't want older people - they have a lifetime of experience to offer - rather than some pimple faced kid just out of school.

so true.....sadly a lot of people who come here and never improve their English...they dont know their rights.. and these people take advantage of them time and time again..

I am sick of reading about it to be honest...

wrote on Apr 8^th, 2014 at 6:19am:

We Will Sack You On Your 65th Birthday.

Too bad, given that Hockey is saying we'll have to work until 67....

But the Audit Commission warns any changes must be phased in to ensure Australians can plan with certainty for their retirement. Mr ­Hockey has backed moves to ­increase the pension age to 70.      :o    :(   

Bobby. wrote on Apr 8^th, 2014 at 6:28am:

It's  strange how employers don't want older people - they have a lifetime of experience to offer - rather than some pimple faced kid just out of school.

Ask andrei - he doesnt like hiring older ppl

SOB

let me see, at 65 there is much less chance of having to pay another lot of long service leave, and if its a woman not much chance of parental leave.

The employer mentioned was an idiot to get caught out doing that.
Other employers will learn and find other ways to get rid of people, like changing shifts and generally making life miserable for the person.
That is also illegal but a lot harder to prove than having written confirmation that the employer is a drongo like in this case.
In the future however employers are going to need older staff as a lot of jobs the young ones wont do.

In the meantime I think employers will dabble with employment contracts which are open ended and can be terminated at any time (if it can be done legally)

cods wrote on Apr 8^th, 2014 at 6:26am:

that wasnt the union that went into bat for him... well done... its sad to see things like this still happening... but that fine will stop them doing it again..

Who said it was?  the fact is - and I can vouch for this as a past Union delegate - the Union WILL go into bat for a person even if that person is not a member and paying his/her way.

Done that myself - the Unions at least hold the faith even when betrayed by everyone else who assumes they can do without them.

Get a grip on the realities of the wages cycles - please.  The Unions are only a small part of the process of determining pay rises.

Hmmm, 2 Thai Restaurants - one in Surfers, and one at Broadbeach.  Hey!  Could it be the one that is attached to Crown Towers, and the other one close to Goldcoast HWY?  I always go there when our family goes up for holidays.  Very nice food. 

Grappler Truth Teller Feller wrote on Apr 8^th, 2014 at 10:45am:

cods wrote on Apr 8th, 2014 at 6:26am: that wasnt the union that went into bat for him... well done... its sad to see things like this still happening... but that fine will stop them doing it again.. Who said it was?  the fact is - and I can vouch for this as a past Union delegate - the Union WILL go into bat for a person even if that person is not a member and paying his/her way. Done that myself - the Unions at least hold the faith even when betrayed by everyone else who assumes they can do without them. Get a grip on the realities of the wages cycles - please.  The Unions are only a small part of the process of determining pay rises.

8 8 8  :o

wrote on Apr 8^th, 2014 at 6:19am:

After returning from leave to part-time work in 2011 ...

He was a full-time employee, and they made a unilateral decision to make him a part-time worker.

Can't do that either.

This mob sound shonky as.

I'd sack him too, in favour of an 18 year old shiela who can't get work because people like this old man refuse to retire.

Many older people hang on well past retirement age, even putting in unpaid over time "because they'd get bored otherwise" - This tends to be celebrated as a good thing - but nobody thinks about the 2 positions their actions keep younger people out of.

greggerypeccary wrote on Apr 8^th, 2014 at 1:36pm:

wrote on Apr 8th, 2014 at 6:19am: After returning from leave to part-time work in 2011 ... He was a full-time employee, and they made a unilateral decision to make him a part-time worker. Can't do that either. This mob sound shonky as.

Depends how business was going. Maybe they could only afford him as a part-time waiter.

As for sacking at 65 ~ I whole-heartedly agree. In fact it should be law.

6% Unemployed ... with most of those being young fellows who can't get a start in life because greedy old bastards want to keep working past retirement age so they can pay off their third or fourth rental investment property.

Screw that.

Not in My Name.

... wrote on Apr 8^th, 2014 at 2:31pm:

I'd sack him too, in favour of an 18 year old shiela who can't get work because people like this old man refuse to retire.

Exactly.

Old Bastards like him should be sent to work in the Chinatown laundries where the steam is so thick you can't see the walls of the laundry rooms, and the sweat pours off your face like a flushed toilet.

He wants to work beyond 65 to pay off his gambling debts to the local tong. No wonder he's in a panic. He doesn't want to end up on the Golden Dragon Chinese Restaurant menu as 'Our Special for Today: Sweet and Sour Pork with Fried Rice and Complimentary Coca Cola'.

What a waste of resources...

not that I agree with what they did .... but blokes like Cheng Peng Lee & @ 80 yrs old SOB's mum should be home putting their feet up or out travelling the country if they are still active....

I certainly don't want to be working into my old age..... Krudd already extended my pension eligibility to 66.5 yrs old & people like this are only encouraging the likes of JOE HOCKALOOGIE to push it out to 70 for those younger than me.

It's good Lee got a pay out .... but he won't have his job back .... he should now take it easy.

Bobby. wrote on Apr 8^th, 2014 at 6:28am:

It's  strange how employers don't want older people - they have a lifetime of experience to offer - rather than some pimple faced kid just out of school.

And a know it all attitude that sees them almost incapable of change or embracing new techniques or technology.

Lord Herbert wrote on Apr 8^th, 2014 at 2:40pm:

greggerypeccary wrote on Apr 8th, 2014 at 1:36pm: wrote on Apr 8th, 2014 at 6:19am: After returning from leave to part-time work in 2011 ... He was a full-time employee, and they made a unilateral decision to make him a part-time worker. Can't do that either. This mob sound shonky as. Depends how business was going. Maybe they could only afford him as a part-time waiter.

It doesn't matter how business was going.

An employer can not legally make a unilateral decision to change an employee's status from full-time to part-time.

greggerypeccary wrote on Apr 8^th, 2014 at 7:47pm:

Lord Herbert wrote on Apr 8th, 2014 at 2:40pm: greggerypeccary wrote on Apr 8th, 2014 at 1:36pm: wrote on Apr 8th, 2014 at 6:19am: After returning from leave to part-time work in 2011 ... He was a full-time employee, and they made a unilateral decision to make him a part-time worker. Can't do that either. This mob sound shonky as. Depends how business was going. Maybe they could only afford him as a part-time waiter. It doesn't matter how business was going. An employer can not legally make a unilateral decision to change an employee's status from full-time to part-time.

I'm actually working with HR now to see how we can do this and in what countries actually.
It's a bit of a minefield but I think it can be done.

Australia will be harder clearly so we might need to try a different route if needed there.

Andrei.Hicks wrote on Apr 8^th, 2014 at 7:51pm:

greggerypeccary wrote on Apr 8th, 2014 at 7:47pm: Lord Herbert wrote on Apr 8th, 2014 at 2:40pm: greggerypeccary wrote on Apr 8th, 2014 at 1:36pm: wrote on Apr 8th, 2014 at 6:19am: After returning from leave to part-time work in 2011 ... He was a full-time employee, and they made a unilateral decision to make him a part-time worker. Can't do that either. This mob sound shonky as. Depends how business was going. Maybe they could only afford him as a part-time waiter. It doesn't matter how business was going. An employer can not legally make a unilateral decision to change an employee's status from full-time to part-time. I'm actually working with HR now to see how we can do this and in what countries actually. It's a bit of a minefield but I think it can be done. Australia will be harder clearly so we might need to try a different route if needed there.

Redundancy.

Make the full-time position redundant, pay out all redundancy entitlements, and then offer the employee a new contract as a part-time worker.

...

greggerypeccary wrote on Apr 8^th, 2014 at 7:56pm:

Andrei.Hicks wrote on Apr 8th, 2014 at 7:51pm: greggerypeccary wrote on Apr 8th, 2014 at 7:47pm: Lord Herbert wrote on Apr 8th, 2014 at 2:40pm: greggerypeccary wrote on Apr 8th, 2014 at 1:36pm: wrote on Apr 8th, 2014 at 6:19am: After returning from leave to part-time work in 2011 ... He was a full-time employee, and they made a unilateral decision to make him a part-time worker. Can't do that either. This mob sound shonky as. Depends how business was going. Maybe they could only afford him as a part-time waiter. It doesn't matter how business was going. An employer can not legally make a unilateral decision to change an employee's status from full-time to part-time. I'm actually working with HR now to see how we can do this and in what countries actually. It's a bit of a minefield but I think it can be done. Australia will be harder clearly so we might need to try a different route if needed there. Redundancy. Make the full-time position redundant, pay out all redundancy entitlements, and then offer the employee a new contract as a part-time worker.

Yes, thats obviously one way. It depends though on the redundancy costs in the particular country.
It might prove too costly.

Our JV in India can just fire people without notice you know.

Andrei.Hicks wrote on Apr 8^th, 2014 at 7:51pm:

I'm actually working with HR now to see how we can do this and in what countries actually. It's a bit of a minefield but I think it can be done. Australia will be harder clearly so we might need to try a different route if needed there.

Just have a restructure

Andrei.Hicks wrote on Apr 8^th, 2014 at 7:59pm:

greggerypeccary wrote on Apr 8th, 2014 at 7:56pm: Andrei.Hicks wrote on Apr 8th, 2014 at 7:51pm: greggerypeccary wrote on Apr 8th, 2014 at 7:47pm: Lord Herbert wrote on Apr 8th, 2014 at 2:40pm: greggerypeccary wrote on Apr 8th, 2014 at 1:36pm: wrote on Apr 8th, 2014 at 6:19am: After returning from leave to part-time work in 2011 ... He was a full-time employee, and they made a unilateral decision to make him a part-time worker. Can't do that either. This mob sound shonky as. Depends how business was going. Maybe they could only afford him as a part-time waiter. It doesn't matter how business was going. An employer can not legally make a unilateral decision to change an employee's status from full-time to part-time. I'm actually working with HR now to see how we can do this and in what countries actually. It's a bit of a minefield but I think it can be done. Australia will be harder clearly so we might need to try a different route if needed there. Redundancy. Make the full-time position redundant, pay out all redundancy entitlements, and then offer the employee a new contract as a part-time worker. Yes, thats obviously one way. It depends though on the redundancy costs in the particular country. It might prove too costly. Our JV in India can just fire people without notice you know.

Redundancy entitlements in Australia.

http://www.fairwork.gov.au/Termination/redundancy/Pages/how-much-redundancy-pay

muso wrote on Apr 8^th, 2014 at 8:05pm:

Andrei.Hicks wrote on Apr 8th, 2014 at 7:51pm: I'm actually working with HR now to see how we can do this and in what countries actually. It's a bit of a minefield but I think it can be done. Australia will be harder clearly so we might need to try a different route if needed there. Just have a restructure

We have re-structures almost every quarter as it is. We're as bad as GE at times.
The strategic plan is to move away from re-structuring divisions often because it gives the impression to shareholders we dont know what the company should look like!  :D

greggerypeccary wrote on Apr 8^th, 2014 at 8:07pm:

Andrei.Hicks wrote on Apr 8th, 2014 at 7:59pm: greggerypeccary wrote on Apr 8th, 2014 at 7:56pm: Andrei.Hicks wrote on Apr 8th, 2014 at 7:51pm: greggerypeccary wrote on Apr 8th, 2014 at 7:47pm: Lord Herbert wrote on Apr 8th, 2014 at 2:40pm: greggerypeccary wrote on Apr 8th, 2014 at 1:36pm: wrote on Apr 8th, 2014 at 6:19am: After returning from leave to part-time work in 2011 ... He was a full-time employee, and they made a unilateral decision to make him a part-time worker. Can't do that either. This mob sound shonky as. Depends how business was going. Maybe they could only afford him as a part-time waiter. It doesn't matter how business was going. An employer can not legally make a unilateral decision to change an employee's status from full-time to part-time. I'm actually working with HR now to see how we can do this and in what countries actually. It's a bit of a minefield but I think it can be done. Australia will be harder clearly so we might need to try a different route if needed there. Redundancy. Make the full-time position redundant, pay out all redundancy entitlements, and then offer the employee a new contract as a part-time worker. Yes, thats obviously one way. It depends though on the redundancy costs in the particular country. It might prove too costly. Our JV in India can just fire people without notice you know. Redundancy entitlements in Australia. http://www.fairwork.gov.au/Termination/redundancy/Pages/how-much-redundancy-pay

I'm aware of that. Some people though are on contracts which are more beneficial than that.
Nonetheless we have a consulting company on it.

Australia - to be honest - isnt really an issue, it is light on headcount and tends to be ex-pat workers on seconded deals for the exporting of gas etc.

Europe is the bigger problem because of all the bloody social structure laws etc.

Do you know its near on impossible to remove a poor performer in France. In some cases you need a court decision!!!

Geesus ... Andrei has an ally in greggory ::)

"How to shaft people for Dummies"

What do 2 iceholes together make?

A Martini or  mega sphincter?

Tell me when you remove all the deadwood in one year....

who is the deadwood in the restructure the year after & the year after when all the deadwood was supposed to be removed 2 years previous?

People who work in HR being toecutters like you are dead set without conscience.

Before long their will be no one to remove & your job will be on the line ..... then justice will be served.

To be fair Gnads , I think they were just discussing how other people would go about things.

greggerypeccary wrote on Apr 8^th, 2014 at 7:56pm:

Redundancy. Make the full-time position redundant, pay out all redundancy entitlements, and then offer the employee a new contract as a part-time worker.

The thing about redundancy though is that if you don't want the person but need the position filled full-time and then declare the position redundant (remember it is positions that are declared redundant) you might have problems in justifying filling the position again.  And, if you are successful in filling the position, it could call in to question the original decision to declare it redundant.

Restructures, or partial restructures, are a much safer way of weeding out dead wood.  You just have to be careful who you select to do the interviewing...

Frances wrote on Apr 9^th, 2014 at 8:54am:

greggerypeccary wrote on Apr 8th, 2014 at 7:56pm: Redundancy. Make the full-time position redundant, pay out all redundancy entitlements, and then offer the employee a new contract as a part-time worker. The thing about redundancy though is that if you don't want the person but need the position filled full-time and then declare the position redundant (remember it is positions that are declared redundant) you might have problems in justifying filling the position again.  And, if you are successful in filling the position, it could call in to question the original decision to declare it redundant.

The discussion was about changing an employee from full-time to part-time, though.

The full-time position is made redundant, and then a new part-time position is created.

The old full-time position isn't being filled: the new part-time one is.

Andrei.Hicks wrote on Apr 8^th, 2014 at 7:59pm:

Our JV in India can just fire people without notice you know.

Too many Indians and not enough.... never mind.

:D