In Leslie Jones v S & Q Group Pty Ltd, the Fair Work Commission (FWC) found that a 74-year-old motel handyman was unfairly dismissed because of his age.

He was terminated when the employer appointed a new company director. The director believed the man’s age meant he didn’t have the required physical capability to perform his job.

The FWC found the reason for the employee’s dismissal, which was made without any medical advice or assessment, “unsound, fanciful and capricious” and ordered that he be reinstated with back pay.

Employee sent packing after questioning pay and superannuation

On 1 July 2019, the employee’s award rate had increased. More than a month later, the employee noted that he had not been paid the new rate, also his superannuation account wasn’t up to date.

A few hours after he raised this with the manager, he was approached by the new director who advised him that his maintenance role would be expanded to include work at another motel the company owned.

The director said the work would be physically demanding and allegedly told the employee that “he should be enjoying his retirement”.

Two days later, the employee asked the manager about his ongoing employment situation. She contacted the director and subsequently advised the employee that he could leave immediately.

In the unfair dismissal hearing, the director argued that the employee wasn’t dismissed because he questioned his pay and superannuation.

The director claimed he was aware of the award increases and had advised employees they would have to wait to be paid while the company transitioned to a new payment system.

The employer provided no evidence to substantiate this.

Employee same age as director’s parents

The director admitted he didn’t send the employee for a medical assessment to determine his suitability for the new role at both motels, but instead relied on personal judgment based on his parents’ capacity to perform the work.

In the hearing, the following exchange took place between FWC Commissioner Bernie Riordan, the director Mr Wei and the employee’s union representative Mr Sage:

“MR WEI:  I want to say Mr Jones – I very respect [sic] Mr Jones, because he is at the age of my father – my mother actually.

COMMISSIONER RIORDAN:  Mr Wei appears to be saying though that he has respect for Mr Jones and that Mr Jones is the same age as his mother.

MR SAGE:  His father, I think.

MR WEI:  Father and mother, yes.

COMMISSIONER RIORDAN:  And that basically he was looking out for him.

MR WEI:  Yes.

MR SAGE:  Yes, Commissioner.  Well, if that were the reason it’s still not a valid reason for dismissal, in our submission, because you cannot simply make your own subjective assessment of the safety requirements of a role and whether someone is fit for that job.  There is a code of practice in relation to manual handling which applies in New South Wales, which sets out what is required from a safety perspective.  Mr Jones himself is familiar with that code.

Mr Wei cannot create a valid reason for dismissal by saying, ‘I was worried about your health and safety,’ but without any probative evidence to say that that was an issue.  That is our submission, Commissioner, on that point.”

Reinstatement and compensation ordered

Commissioner Riordan found that the employer had failed to take into account the employee’s “skill, experience and competency” and that the director had “simply allocated the capacity of his 74-year-old parents” to the employee.

“This process was totally subjective and undertaken without any medical advice or assessment,” he said.

“As a result, the reason for termination was unsound, fanciful and capricious.”

Noting that the employer had not lost trust or confidence in the employee, Commissioner Riordan ordered that he be reinstated and back paid from the date of his termination.